INSTRUCTIONS 


AND 


REQUESTS   FOR  INSTRUCTIOiXS 


FROM  THE   COURT   TO   THE   JURY   IN 
JURY   TRIALS. 


MORE    ESPECIALLY    ADAPTED   TO   THE    PRACTICE    OF  THOSE    STATES  WHERE 
SrCH   INSTRt'CTIONS   ARE  REQUIRED   TO   BE   IN  WRITING. 


BY 


FEEDERICK    SACKETT, 


CHICAGO: 
PUBLISHED  BY  S.  A.  WELLS,  1G2  LA  SALLE  ST. 
1881. 


Entered  According  to  Act  of  Congress,  in  the  year  1880,  by 

FKEDEEIC'K  SACKETT, 
In  the  Office  of  the  Librarian  of  Congress,  at  "Washington. 

T 
m) 


JAMESON  .1-  MOKSK,  PKINTEKS, 
102  &  104  Clark  St.,  Chicago. 


PREFACE 


In  offering  this  work  to  the  profession,  it  may  not  be  improper  to 
state  the  considerations  which  induced  its  undertaking,  and  the  objects 
sought  to  be  accomphshed  by  it.  No  attempt  has  been  made  to  write 
a  formal  treatise  on  the  law  of  instructions,  or  the  practice  of  instructing 
juries;  the  design  has  been  rather  to  furnish  to  the  j)rofession  in  those 
states  where  instructions  are  required  to  be  in  Avriting,  a  work  of  prac- 
tical utility,  by  collecting  together,  in  a  somewhat  connected  form,  the 
decisions  of  the  higher  courts  regarding  the  general  form  and  essential 
requisites  of  written  instructions,  to  be  given  by  the  court  to  the  jury; 
and  also,  by  furnishing  carefully  prepared  general  instructions  upon 
many  of  the  more  common  and  intricate  questions  likely  to  arise  in  a 
general  practice. 

There  is,  perhaps,  no  other  branch  of  the  practice  in  which  a  young 
practitioner  feels  the  need  of  assistance  so  much  as  in  the  preparation 
of  his  instructions,  and  requests  for  instructions  to  the  jury.  He  gen- 
erally commences  the  practice  of  his  profession  not  only  without  expe- 
rience, but  without  even  a  theoretical  knowledge  of  the  subject,  and,  in 
the  absence  of  some  work  of  this  kind,  without  any  means  of  acquiring 
such  knowledge.  If  he  refers  to  his  usual  text-books,  he  will  find  stated 
the  general  principle  of  law  which  he  seeks,  together  with  an  account 
of  its  origin,  history,  mutations,  contrary  holdings,  and  the  reasons 
upon  which  it  is  based,  with  illustrations  drawn  from  other  systems  of 
jurisprudence,  while  its  exceptions,  qualifications,  and  limitations  are 
treated  of  in  another  chapter;  all  of  which  may  be  proper  enough  for 
a  learner,  but  is  of  little  assistance  in  the  attempt  to  give  a  concise  and 
exact  statement  of  the  whole  of  the  law  upon  the  point  in  question. 

It  not  imfrequently  happens  that,  for  greater  certainty,  he  quotes, 
in  his  instructions,  verbatim,  from  an  opinion  given  by  the  higher 
courts  in  a  similar  case,  and  ultimately  finds,  to  his  surprise,  that  while 
the  language  used  by  the  court  was  proper  enough,  taken  in  connection 
with  the  facts  in  the  case  under  consideration,  it'Avas  not  intended  to 
announce  a  principle  of  universal  application,  and  that  as  applied  to 
his  own  case  his  instructions  are  erroneous,  although  stated  "  in  the 
very  language  of  the  Supreme  Court  itself." 

Judging  from  the  number  of  new  trials  granted,  and  cases  reversed, 
on  the  ground  of  technical  and  formal  errors  in  the  instructions  given, 
it  would  seem  that  the  case  is  not  much  better  with  many  of  the  older 


G67465 


i  V  1'  K  E  F  A  C  E . 

iiicmbcrs  of  tho  profession.  The  tnitli  is,  very  few  lawyers  are  able  to 
write  an  elaborate  set  of  instructions  upon  intricate  points  of  law  amidst 
tlie  distractions  of  a  hotly  contested  trial,  without  committing  formal 
errors,  which  cannot  be  detected  by  the  judge  who  tries  the  case  in  the 
time  usually  allowed  for  that  purpose.  The  general  rule  of  law  appli- 
cable to  the  case  may  be  recalled  readily  enough;  but  its  exceptions 
and  qualilications  are  apt  to  be  overlooked  under  such  circumstances, 
and  the  practical  result  is,  that  more  new  trials  are  granted,  and  more 
cases  reversed,  on  the  ground  of  informality  and  technical  errors  in  the 
instructions  than  there  arc  for  the  reason  that  either  the  counsel  or  the 
court  really  mistook  the  principle  of  the  law  in  the  case.  In  view  of 
these  facts  it  would  seem  that  a  work  of  this  kind  is  almost  indispens- 
able to  the  young  practitioner,  and  that  to  the  experienced  lawyer  it 
may  be  of  some  assistance,  to  say  the  least. 

While  one  instruction  need  not  embody  all  the  law  of  the  case,  each 
instruction  should,  in  itself,  in  a  clear  and  concise  manner,  correctly 
state  the  princijjle  of  law  which  it  purports  to  announce,  with  all  its 
necessary  exceptions  and  limitations,  without  reference  to  the  other 
instructions  in  the  case.  In  the  following  pages  are  contained  over 
two  thousand  general  instructions,  complying  with  the  above  requi- 
sites, which  cover  most  of  the  more  difficult  points  which  are  likely  to 
arise  in  a  general  practice.  It  is,  of  course,  impossible  to  anticipate 
the  ever-varying  facts  of  different  cases,  but  it  is  believed  that  but  few 
cases  will  present  themselves,  involving  difficult  propositions  of  law, 
for  which  the  necessary  general  instructions  can  not  be  found  in  this 
work,  or  instructions  embracing  the  principles  desired  to  be  enunciated, 
which  can,  by  very  slight  verbal  alterations,  be  adapted  to  the  case  in 
point,  or  at  least  serve  as  a  guide  in  drawing  others  adapted  to  the 
peculiar  facts  of  the  case  on  trial.  With  any  amount  of  aid  from  others 
there  will  always  be  abundant  opportunities  for  the  exercise  of  learning 
and  skill  in  drawing  special  instructions  to  meet  the  facts  of  each 
particular  case. 

Upon  some  subjects  the  local  statutes  and  decisions  of  the  courts 
of  the  several  states  differ  greatly,  and  it  is  manifestly  impracticable 
to  adapt  all  the  instructions  here  given  to  these  local  laws  and  decisions ; 
but  as  they  are  mostly  of  a  general  nature,  each  practitioner,  by  slight 
alterations,  can  make  them  conform  to  the  statutes  and  practice  of  his 
own  state.  It  must  be  constantly  borne  in  mind  that  tho  object  of  this 
work  is  not  so  much  to  teach  the  law,  as  it  is  to  assist  in  a  correct  state- 
ment of  it;  and  it  has  been  assumed  that  each  lawyer  knows  the  laws 
peculiar  to  his  own  state. 


1'  II  !■:  FACE.  V 

Wlieii  an  instruction  embodies  a  familiar  principle  of  law,  it  has 
not  been  deemed  necessary  to  cite  authorities  in  support  of  it,  but  in 
all  other  cases  one  or  more  authorities  are  given. 

It  may  not  be  safe  to  assume  that  no  mistakes  have  been  made  in 
attempting  to  state  so  many  distinct  propositions  of  law,  and  upon  so 
great  a  variety  of  subjects  as  are  contained  in  the  following  pages;  but 
no  pains  or  labor  have  been  spared  to  avoid  errors,  and  it  is  confidently 
believed  that  not  many  will  be  found. 


PAET    I.      - 

Instructions — Their  Fornn  and 
Requisites. 


PART    I. 

IXSTRUOTIONS— THEIR  FORM  AND  REQUISITES. 


In  the  orderly  and  regular  progress  of  a  cause  before  a  jury, 
ill  courts  where  the  common  law  practice  prevails,  after  the  cause 
has  been  argued  by  the  counsel  on  both  sides,  the  judge  proceeds 
to  charge  the  jury  orally,  explaining  to  them  the  nature  of  the 
action  and  of  the  defense,  and  the  points  in  issue  between  the 
parties,  recapitulating  the  evidence  which  has  been  produced 
upon  both  sides,  and  remarking  upon  it  when  he  deems  it  neces- 
sary or  desirable,  and  directing  or  instructing  the  jury  on  all 
points  of  law  arising  upon  the  evidence;  or,  to  quote  the  words 
of  Chitty :  "  It  is  the  practice  for  the  judge  at  nisi  prius  not 
only  to  state  to  the  jury  all  the  evidence  that  has  been  given, 
but  to  comment  upon  its  bearing  and  weight,  and  to  state  the 
legal  rules  upon  the  subject,  and  their  application  to  the  partic- 
ular case,  and  to  advise  them  as  regards  the  verdict  they  should, 
give." 

This  common  law  practice,  in  many  of  the  States,  has  been 
changed  by  statute,  so  as  to  require  the  court  to  instruct  the  jury 
as  to  the  law  of  the  case  only,  and,  either  peremptorily  or  at  the 
request  of  either  party,  to  reduce  his  charge  to  writing.  The 
general  character  and  scope  of  these  changes  in  the  common  law 
practice  will  appear  from  the  following  statutory  provisions  of 
some  of  the  States: 

Illinois. — "The  court,  in  charging  the  jury,  shall  only  instruct 
as  to  the  law  of  the  case.  Hereafter  no  judge  shall  instruct  the 
petit  jury  in  any  case,  civil  or  criminal,  unless  such  instructions 
are  reduced  to  writing. 

"And  when  instructions  are  asked  which  the  court  cannot  give, 
he  shall  on  the  margin  thereof  write  the  word,  'Refused; '  and 
such  as  he  approves  he  shall  write  on  the  margin  thereof  the 
word,  'Given;'  and  he  shall  in  no  case,  after  instructions  are 
given,  qualify,  modify,  or  in  any  manner  explain  the  same  tv 
the  jury  otherwise  than  in  writing." 


10  INSTKUCTIOXS : 

Iowa. — "Wlu'ii  the  ai-i:;uiiRMit  is  conchidud,  eitlu'r  ]t;irty  may 
request  iii.-tnictions  to  tlie  jury  on  points  of  law,  which  shall  he 
given  or  refused  by  the  eourt.  If  the  court  refuse  a  written 
instruction  as  demanded,  hut  i^-ive  tlie  same  with  a  modification, 
Avhich  the  court  may  do,  siu-h  nioditication  shall  not  he  by  inter- 
lineation or  erasure,  hut  shall  he  well  defined,  etc. 

"Tlie  court  must  read  over  all  the  instructions  which  it  intends 
to  give,  and  none  others,  to  the  jury,  and  must  write  the  Avords 
'Given,'  or  'Eefused,'  as  the  ease  may  he,  on  the  margin  of  each 
instruction. 

"After  argument,  the  court  may  also,  of  its  own  motion, charge 
tlie  jury,  which  shall  i)e  exclusively  in  writing.  The  court  shall 
not  make  any  oral  explanation  of  any  instruction  or  charge." 

Indiana. — "When  the  evidence  is  concluded,  and  either  party 
desires  special  instructions  to  be  given  to  the  jury,  such  instruc- 
tions shall  be  reduced  to  writing,  numbered  and  signed  l)y  the 
party  or  his  attorney  asking  the  same,  and  delivered  to  the  court. 

"When  either  party  asks  special  instructions  to  be  given  to 
the  jury,  the  court  shall  either  give  each  instruction  as  recpiested 
<^r  positively  refuse  to  do  so;  or  give  the  instruction  with  a  mod- 
ification, in  such  manner  tliat  it  shall  distinctly  ap^iear  what 
instructions  were  given  in  whole  or  in  part,  and  in  like  manner 
those  refused,  so  that  either  party  may  except  to  the  instructions 
as  asked  for  or  modified,  or  to  the  modification. 

"When  the  argument  of  the  cause  is  eoncludec>,  the  court  sliall 
give  geiiei'al  instructions  to  the  jui-y,  which  shall  be  in  writing 
and  signed  by  the  judge  if  recpiired  by  either  party." 

Michigan. — "Hereafter,  in  all  civil  and  criminal  cases  at  law, 
circuit  courts,  in  charging  or  instructing  juries,  shall  cliarge  or 
instruct  them  only  as  to  the  law  of  the  case;  and  such  charge  or 
instruction  shall  be  in  writing,  and  may  be  given  by  the  court 
upon  its  own  motion. 

"luther  party  may  present  written  requests  for  instructions 
on  any  point  of  law  arising  in  the  case.  Whenever  instructions 
are  asked  which  the  court  cannot  give,  he  shall  write  in  the 
margin  thereof  'Refused;'  and  such  instructions  as  the  court 
approves  lie  shall  designate  by  writing  in  the  margin  thereof  the 
word  '(jiven.' 

"And  the  court  shall  in  no  case,  orally  qualify,  modify  or  in 
any  manner  explain  the  same  to  the  jury." 

Ohio. — The  court,  after  the  argument  is  concluded,  shall 
immediately  charge  the  jury;  which,  or  any  chai-ge  given  after 
the  conclusion  of  the  argument,  shall  be  reduced  to  writing 
by  the  court,  if   either  party  request  it  before  the   argument 


THEIR    FORM    AND    REQUISITES.  11 

to  the  jui-v  is  eoinmenccd;  and  such  charge,  or  any  charge  or 
instruction,  ])r()vi(UMl  i'or  in  this  section,  when  so  written  and 
given  shall  in  no  case  be  orally  qualiiied,  modified  or  in  any 
manner  explained  to  the  jury  by  the  court." 

Wisconsin. — "  Upon  the  trial  of  every  action,  the  judge  presiding 
shall,  before  giving  the  same  to  the  jury,  reduce  to  writing  and 
give  as  written  his  charge  and  instructions  to  the  jury;  and  all 
further  and  particular  instructions  given  them  when  they  shall 
return  after  having  once  retired  to  deliberate,  unless  a  written 
charge  be  waived  by  counsel  at  the  commencement  of  the  trial ; 
and  except  that  the  charge  or  instructions  may  be  delivered  orally 
wdien  taken  down  by  the  official  phonographic  reporter  of  the 
court.  Each  instruction  asked  by  counsel  to  be  given  to  the 
jui-}'  shall  be  given  without  change  or  modification,  the  same  as 
asked,  or  refused  in  full.  If  any  judge  shall  violate  any  of  the 
foregcung  provisions,  or  make  any  comments  to  the  jury  upon 
the  law  or  facts  on  the  trial  in  any  action  without  the  same  being 
so  reduced  to  writing  or  taken  down,  the  judgment  rendered 
upon  the  verdict  found  shall  be  reversed  upon  appeal  or  writ  of 
error,  upon  the  fact  appearing." 

§  1.  Statute  Mandatory— Instructions  must  be  in  Writing. — A  judge 
on  the  trial  of  a  cause  has  no  authority  to  affect  or  change  the 
law  as  stated  in  written  instructions,  by  any  statement  not  in 
writing.  It  is  error  for  the  court  to  instruct  the  jury  orally,  or 
to  orally  explain  or  modify  an  instruction.  Ray  vs.  ■  Woolters^ 
19  111.,  82;  Head  et  al.  vs.  Langworthy,  15  la.,  235;  Hardin 
vs.  Helton,  50  Ind.,  320;  Horton  vs.  Williams,  21  Minn.,  187; 
State  vs.  Jones,  61  Mo.,  232;  Miller  vs.  Hampton,  Z1  A\2i., 
312;  Widjier  vs.  State,  28  Ind.,  391;  Strattan  vs.  Paul,  10 
la.,  139. 

It  is  a  violation  of  the  statute  for  the  court  to  instruct  the 
jury  orally  as  to  the  impropriety  of  certain  modes  of  arriving 
at  their  verdict.     III.  Cent.  Ed.  Co.  vs.  Hammer,  85  111.,  520. 

Remarks  by  the  Court  Calculated  to  Influence  tlie  Jury. — It   is   not 

proper  for  a  court  to  make  remarks  in  the  hearing  oi  a  jury 
calculated  to  influence  their  finding.  Shelly  vs.  Boland,  78 
111.,  138;  Furhman  vs.  Huntsville,  51  Ala.,  263;  Wannaclc  vs. 
Mayer,  etc.,  53  Ga.,  162;  Hashrouck  vs.  Milwaukee,  21  Wis,, 

217. 


12  ,  instructions: 

liemarks  by  the  court  to  the  jury  touching  the  public  neces- 
sity of  their  airreeiuir,  or  other  remarks  calcuhited  to  luisten 
thcii-  venlict,  however  well  meant,  is  a  practice  that  cannot  be 
sn.stained  and  is  unwarranted  by  the  law.  and  il"  made  in  a  case 
at  law  where  the  facts  are  shai-ply  contested  would  vitiate  the 
verdict.     ]-'<ini/iaiii  vs.  Farnhtim,  l'-\  111.,  4'.>7. 

Contra:  AVhere  a  j ury, after  1  )eing  out  five  hours,  returned  into 
court  and  announced  their  inability  to  agree  upon  a  verdict,  in- 
structions upon  their  duty  as  to  reconciling  their  view^s  and  arriving 
at  a  verdict,  if  consistent  with  their  consciences,  rather  than 
that  the  parties  should  1)0  put  to  the  trouble  and  expense  of  try- 
ing the  case  again,  nothing  being  said  to  the  i)rejudice  of  either 
party,  ai-e  held  not  erroneous.  Pierce  vs.  Rehfuss,  35  Mich., 
53 ;  Allen  vs.  Woodson,  50  Ga.,  53. 

§  2.  In  Writing  may  be  Waived. — "While  the  statute  requires  that 
the  instructions  given  to  the  jury  shall  be  in  writing,  the  parties 
may  waive  that  provision  of  the  law,  and  when  they  do  so  and 
consent  that  the  court  may  instruct  the  jury  orally,  they  an; 
estopped  from  afterwards  objecting.  Bates  vs.  Ball,  72  111., 
108. 

A\nien  oral  instructions  are  not  excepted  to  on  that  ground,  at 
the  time,  the  error  will  be  regarded  as  waived.  State  vs.  Sipult 
17  la.,  575;  Yamoey  vs.  State,  41  Tex.,  639. 

§  3.  The  Court  may  Instruct  without  beinsr  Asked. — A  judge  of  the 
circuit  court  is  at  liberty  to  instruct  at  his  disc-retion  if  he 
reduces  his  instructions  to  writing,  so  that  the  jury  can  take 
them  with  them  in  considering  of  their  verdict.  Broion  vs. 
TJte  People,  4  Gilm.,  439;    Green  vs.  Lewis,  13  111.,  642. 

§  4.  Duty  of  the  Court  to  Instruct. — It  is  the  duty  of  the  judge, 
when  recpiested,  to  instruct  the  jury  upon  every  point  of  law 
pertinent  to  the  issues.  In  preparing  instructions  each  party 
may  assume  any  reasonable  hypothesis  in  relation  to  the  facts  of 
the  case,  and  ask  the  court  to  declare  the  law  as  applicable  to  it, 
and  it  is  ei'ror  to  refuse  an  instruction  so  framed  because  the 
case  supposed  does  not  include  some  other  hypothesis  etpially 
rational.  People  vs.  Taylor,  36  Cal.,  255;  Hays  vs.  Paul,  51 
Penn.  St.,  134, 


THEIR    FORM    AND    REQUISITES.  13 

Each  party  lins  the  right  to  have  the  jury  instructed  upon  tlie 
law  of  tlie  case  clearly  and  pointedly,  so  as  to  leave  no  reasona- 
ble groinid  for  misapprehension  or  mistake;  and  if  the  instruc- 
tions of  the  court  fail  thus  to  instruct,  it  is  error  to  refuse  one 
calculated  to  cure  the  omission.  Muldowney  vs.  III.  Cent.  lid. 
Co.,  32  Iowa,  176;  Carpente?'  vs.  State,  43  Ind.,  371;  Morris 
vs.  Piatt,  32  Conn.,  75 ;  Nels  vs.  State.  2  Tex.,  280. 

It  is  the  duty  of  the  judge  to  see  tliat  every  case  so  goes  to  the 
jury  that  they  have  clear  and  intelligent  notions  of  the  points 
they  are  to  decide,  and  to  this  end  he  should  give  necessary  in- 
structions whether  so  requested  by  counsel  or  not,  and  his  fail- 
ure so  to  do  is  held  ground  for  a  new  trial  where  the  verdict 
was  not  one  which  effectuated  justice  between  the  parties. — 
Oxoen  vs.  Oioen,  22  la.,  270.;  The  State  vs.  Brainard,  25 
la.,  572. 

It  is  the  duty  of  the  court  to  instruct  the  jury  as  to  the  issues 
joined  in  the  pleadings,  and  to  determine  from  the  pleadings 
what  allegations  are  admitted  and  what  denied.  Pharo  et  al. 
vs.  Johnson,  15  la.,  560;  Potter  vs.  C,  R.  I.  d;  P.  R.  Co.,  46 
la.,  399 ;  Dassler  vs.   Wisley,  32  Mo.,  498. 

§  5.  Should  be  Clear,  Accurate  and  Concise. — Instructions  should, 
in  a  clear,  concise  and  comprehensive  manner,  inform  the  jury 
as  to  what  material  facts  must  be  found  in  order  to  recover,  or 
to  bar  a  recovery.  They  should  never  be  argumentative,  equiv- 
ocal, or  unintelligible  to  the  jury.  Moshler  vs.  Kitchell,  87 
111.,  19. 

Instructions  should  always  be  clear,  accurate  and  concise 
statements  of  the  law  as  aj)plicable  to  the  facts  of  the  case.  It 
was  never  contemplated  under  the  provisions  of  the  practice  act 
that  the  court  should  be  required  to  give  a  vast  number  of  in- 
structions, amounting  in  the  aggregate  to  a  lengthy  address; 
such  a  practice  is  mischievous,  and  ought  to  l)e  discountenanced. 
A  few  concise  statements  of  the  law  applicable  to  the  facts  is 
all  that  can  be  required,  and  all  that  can  serve  any  practical 
purpose  in  the  elucidation  of  the  case.  Adams  vs.  Smith,  58 
III.,  417;  Trish  vs.  Newell,  62  III,  196;  State  \^.  Mix,  15 
Mo.,  153. 


i-i  I  N  s  r  u  icT  roNs  • 

§  G  Should  Not  be  Argimionlalivo. — It  is  erroneous  to  ^ivc  an 
iiistriietioii  whieli  is  inoic  in  the  nature  of  an  ariruuient  than  a 
statement  of  the  law  f^oveniiiig  the  ease,  o;iviiiu^  un(hie  prouii- 
nence  to  facts  relied  upon,  and  reeitini^  faints  liaviu<^  no  tendency 
to  support  the  theory  presented.  Ludwuj  vs.  Sager,  S-i  111,, 
'J'J;  Thorpe  vs    Groioey,  85  111.,  012. 

§  7.  Should  l»i'  Conliui'd  to  .Matters  of  Law. — The  charge  of  the 
couit  to  the  jui-y  should  he  strictly  confined  to  matters  of  law, 
and  it  is  erroneous  for  the  judge  to  tell  the  jury  what  facts  are 
proved  and  what  are  not.  The  court  may  instruct  the  jury 
what  is  evidence,  but  not  wdiat  it  proves.  Russ  vs.  Steamboat, 
etc.;  *J  la.,  374;  Thompson  vs.  Hovey,  \Z  111.,  198. 

§  8.  Should  Not  Submit  Questions  of  Law  to  the  Jurj-. — It  is  error 
to  give  instructions  to  the  jury  which  require  thein  to  find  and 
determine  legal  propositions.  The  court  should  direct  the  jury 
what  the  law  is  on  the  facts  ^vhich  the  evidence  tends  to  prove; 
or  instruct  them  what  the  law  is,  if  they  find  the  facts  to  be  as 
alleged  or  claimed.  Mitchell  vs.  The  Town  of  Fond  du  Lae, 
16  111.,  174;  Hudson  vs.  St.  Louis  etc.  R.  Co.,  53  Mo.,  525; 
Thomas  vs.  Thomas,  15  B.  Mon.,  178. 

When  it  appeared  that  there  was  a  verbal  contract  between 
the  plaintiff  and  another,  the  question  as  to  what  the  contract 
was,  was  one  of  fact  for  the  jury;  but  the  question  as  to  what  the 
legal  effect  of  it  was,  was  a  question  of  law,  and  it  was  ei-ror  to 
sul.)mit  both  these  questions  to  the  determination  of  a  jury  l)y 
instructions.  White  vs.  Murtland,  71  111.,  250:  Rohrahacher 
vs.  Ware,  37  la.,  85;  Lapeer  etc.,  Lis.  Co.  vs.  Doyle,  30 
Mich.,  150. 

"Whether  a  chattel  mortgage  is  proved  to  have  been  duly 
acknowledged  and  recoided  is  a  question  of  law  for  the  court, 
and  should  not  l)e  submitted  to  the  jury.  Bailey  vs.  Godfrey, 
54  111.,  507. 

In  an  a(;tion  against  a  i-ailroad  company  for  damages  for  in- 
jury to  private  property  by  the  construction  of  its  road  upon  a 
public  street,  it  was  held  to  be  error  to  instruct  the  jury  to  de- 
termine whether  the  company  had  constructed  more  tracks,  or 
upon  different  lines,  than  were  authorized  by  the  city  ordinances. 


THEIR    FORM    AND    REQUISITES.  15 

The  iiuiubcr  of  tracks  thus  authorized  was  a  question  of  hiw, 
respecting  which  the  cf)urt  shouhl  liave  determined  the  legal 
rights  of  the  parties.  Ingram  et  al.  vs.  The  6%  D.  di  3£.  It. 
R.  Co.,  38  la.,  GC9. 

The  Dej?ree  of  Care  Required  in  a  Given  Case  is  a  Question  of  Law.  — 

The  law  prescribes  the  degree  of  care  required  in  every  class  of 
cases — in  other  words,  whether,  in  a  given  case,  a  person  is  re- 
quired to  exercise  slight  care,  reasonable  care  or  the  utmost  care 
and  diligence,  is  determined  by  the  law,  and  is  to  be  declared  by 
the  court;  whether  such  care  has  in  fact  been  exercised  in  the 
conduct  of  a  party,  in  a  given  case,  is  a  question  of  fact  to  be 
submitted  to  the  jury. 

In  an  action  to  recover  for  an  injury  caused  by  the  negligence 
of  the  defendant,  an  instruction  on  the  part  of  the  defendant 
that  the  plaintiff  cannot  recover  unless  the  proof  shows  that  by 
the  exercise  of  due  or  proper  care  he  could  not  have  averted  the 
injury,  is  erroneou?,  as  it  submits  a  question  of  law  to  the  jury  as  to 
what  is  proper  care,  and  does  not  confine  them  to  the  fact 
whether  the  plaintiff  used  ordinary  care,  which  is  all  the  law 
requires.     Stratton  vs.  Cent.    City  Horse  By.  Co.,  95  111.,  25. 

§  9.  Abstract  Propositions  of  Law  Sliould  Not  be  Given,  When. — In- 
structions should  be  framed  with  reference  to  the  cii-cumstances 
of  the  case  on  trial,  and  not  be  expressed  in  abstract  and  general 
terms,  when  such  terms  may  mislead  instead  of  enlightening  the 
jury.      C  (&  A.  Rd.  Co.  vs.  Utley,  38  111.,  410. 

Instructions  containing  mere  abstract  legal  propositions  with- 
out any  e\idence  to  support  them,  are  calculated  to  mislead  the 
jury,  and  should  not  be  given.  Stein  vs.  The  City,  etc.,  41  la,, 
353;  McNair  vs.  Piatt,  46  111.,  211. 

§10.  Should  not  Ignore  Facts  Proven. — When  there  is  e^adonce 
tending  to  prove  a  fact  having  an  important  bearing  upon  the 
law  of  the  case,  though  strongly  contradicted,  an  instruction  is 
erroneous  which  ignores  the  existence  of  such  fact,  and  takes  its 
consideration  from  the  jury.  Chicago  P.  c&  P.  Co.  vs.  Tilton, 
87  111.,  547. 

When  the  court  directs  the  attention  of  the  jury  to  the  facts, 
it  should  refer  them  to  all  the  facts  bearing  upon  the  issues,  so 


IG  instructions: 

as  to  present  tlie   case  fairly  for  botli  parties.       Cushman  vs. 
Cogswell,  S6  111.,  G3;  Snyder  vs.  The  State,  59  Incl.,  105. 

An  instruction  which  undertakes  to  give  a  summary  of  the 
principal  facts,  but  directs  the  attention  of  the  jury  only  to  those 
favorable  to  one  of  the  parties,  leaving  out  of  view  all  that  tends 
to  illustrate  the  theory  of  the  other  party  is  objectionable,  ^vans 
vs.  George,  80  111.,  51;  Newman  vs.  Mc  Comas,  43  Md.,  70. 

§11.     Should  not  Give  Undue  Prominence  to  Portions  of  the  Evidence. — 

An  instruction  which  singles  out  and  gives  undue  prominence  to 
certain  facts,  ignoring  other  facts  proved  and  of  equal  importance 
iii  a  proper  determination  of  the  case,  is  improper.  Calef  vs. 
Thompson,  81  111.,  478;  Westchester  F.I.  Co.  vs.  Earle,  33 
Mich.,  143;  Jones  vs.  Jones,  57  Mo.,  138. 

§  12.  Should  not  Give  Prominence  to  Unimportant  Facts. — An  in- 
struction which  calls  special  attention  to  particular  points  in  the 
evidence  which  are  indecisive,  and  mere  circumstances  bearing 
upon  an  issue  of  fact,  and  omits  all  reference  to  other  important 
circumstances  in  proof,  is  objectionable.  Graves  vs.  Cohoell, 
90  111.,  612;    Chesney  vs.  Meadoios,  90  111.,  430. 

§  13.  Should  be  Given  when  there  is  Any  Evidence,  etc. — When  the 
evidence  tends  to  prove  a  certain  state  of  facts,  the  party  in  whose 
favor  it  is  given  has  a  right  to  have  the  jury  instructed  on  the 
hypothesis  of  such  state  of  facts,  and  leave  it  to  the  jury  to  find 
whether  the  evidence  is  sufficient  to  establish  the  facts  supposed 
in  the  instruction.  If  the  instructions  are  pertinent  to  any  part 
of  the  testimony,  they  should,  if  correct,  be  given  without  regard 
to  the  amount  of  e\*idence  to  which  they  apply.  Griel  vs.  Marks, 
51  Ala.,  5GG;  State  vs.  Gibbons,  10  la.,  117;  Kendall  vs.  Brown, 
74  111.,  232. 

When  an  instruction  is  asked  upon  a  question  concerning 
which  there  is  no  direct  testimony,  yet  if  there  be  any  proof 
tending  to  establish  it,  such  question  should  be  submitted  to  the 
jury,  as  the  party  asking  the  instruction  is  entitled  to  the  benefit 
of  whatever  inference  the  jury  may  think  proper  to  draw  from 
the  proof,  however  slight.  Peoria  Ins.  Co.  vs.  Anapoio,  45 
111.  87 ;  Flournoy  vs.  Andrews,  5  Mo.,  513 ;  Camp  vs.  Phillips, 
43  Ga.,  289. 


T  II  i:  1  It    !•  < »  R  M    A  N  D    It  10  Q  l'  I  S  I  T  K  S  .  1  < 

§  14.  Must  not  Assume  Facts  not  Admitted. — It  is  tlie  province  of 
the  court  to  instruct  the  jury  as  to  tlu;  htw  of  the  case,  and  tliut 
of  the  jury  to  iiiid  the  facts  proved  hy  tlie  evidence.  It  is  error 
for  the  court,  in  n-ivini;;  an  instruction,  to  assume  that  facts  have 
liceu  proved,  or  that  a  certain  state  of  facts  exist.  IIuhhM  vs. 
Minteer,  83  Ilh,  150;  Stier  vs.  The  City,  etc.,  41  la.,  353; 
Siebert  vs.  Leonard,  21  Minn.,  442. 

Instances:  "In  this  case  the  phiintiff  is  entitled  to  recover  all 
damai^es  proved  to  have  heen  sustained  by  hini  on  account  oi 
the  trespass  coniinitted  l)y  the  defendant  on  plaintiff's  ])rcinises, 
as  claimed  in  the  declaration."  Small  vs.  Brainerd,  44  111., 
355;  Boddie  vs.  State,  52  Ala.,  395;  N.  I.  Life  Ins.  Co.,  94  U. 
S.  Reports,  610;  Peck  vs.  Ritchey,  ^^  Mo.,  114. 

"If  the  jury  believe  from  the  evidence  that  Bond  and  Shinn 
were  together  and  acting  in  concert  at  the  time  of  the  assault, 
they  should  find  them  equallv  guiltv."  Bond  et  al.,  vs.  The 
People,  39  111.,  2(5. 

It  will  be  seen  that  in  the  first  of  these  examples,  it  is  assumed, 
as  a  fact,  that  a  trespass  had  been  committed,  and  in  the  second, 
that  an  assault  had  been  made. 

An  instruction  commencing,  "We  will  now  direct  your  atten- 
tion to  the  question  whether  the  defendant  gave  the  deceased 
strychnine  with  a  criminal  intent" — held  to  be  erroneous,  as 
liable  to  be  understood  by  the  jury  to  assume  the  disputed  point, 
whether  he  gave  her  poison  at  all,  leaving  to  them  only  the 
(piestion  of  intent.     Snyder  vs.  The  State,  59  Ind.,  105. 

§  15.  Facts  not  Controverted  may  be  Assumed. — Where  an  instruc- 
tion assumes  the  existence  of  a  fact  in  issue  l)y  the  pleadings,  Imt 
which  is  admitted  by  the  party  objecting  in  his  testimony,  and 
there  is  no  evidence  contradicting'  such  admission,  there  will  be 
no  material  error  in  giving  such  instruction.  Ileartt  vs.  Rhodes, 
m  111.,  351  ;    Weeks  vs.  Cottingham,  58  Ga.,  559. 

If  an  instruction  assumes  the  existence  of  facts  not  contro- 
verted on  the  trial,  and  which  under  the  circumstances,  if  assumed, 
could  not  prejudice,  there  will  be  no  error.  Miller  vs.  Kirhy, 
74  111.,  242;  Hughes  vs.  Monty,  24  la.,  499. 

It  is  often  a  matter  of  convenience,  and  avoids  circumlocution, 
to  assume  the  existence  of  certain  facts  al)out  which  the  parties 
are  agreed,  and  neither  party  under  such  circumstances  can  after- 

2 


18  instructions: 

waixls  make  such  assumption  a  ground  of  objection  to  the  instruc- 
tic^n.     Martin  vs.  The  People,  13  111.,  341. 

An  instruction  which  assumes  a  certain  fact,  without  leaving 
the  jury  to  find  the  same  from  the  evidence,  is  not  erroneous 
when  there  is  no  dispute  made  as  to  such  fact  and  it  is  not  denied 
by  either  party.  CaldivcU  vs.  Stephens,  57  Mo.,  589;  Jlanra- 
han  vs.  The  People,  01  111.,  112. 

§  16.  Instructions  may  Assume  what  the  Law  Pi'esumes. — ^When  the 
circumstances  proved  are  of  such  a  character  that  the  law  itself 
raises  a  presumption,  the  court  inay  properly  instruct  the  jury 
to  draw  such  inference.      Ilerkelrath  vs.  Stookey,  G3  111.,  480. 

In  giving  instructions,  the  judge  should  always  abstain  from 
in  any  manner  indicating  an  opinion  as  to  the  weight  of  evi- 
dence, unless  it  is  of  that  character  which  the  law  deems  conclu- 
sive.    Frame  vs.  Badger,  79  111.,  441. 

§  17.  When  all  material  Allegations  are  Proved. — A\Tienever  all 
the  material  facts  necessary  to  enable  the  plaintiff  to  recover  are 
averred  in  the  declaration,  it  is  not  improper  for  the  court  to 
instruct  the  jury  that,  if  the  facts  alleged  in  the  declaration  have 
all  been  proved,  the  plaintiff  is  entitled  to  recover,  unless  the 
defendant  has  established  by  a  preponderance  of  evidence  somic 
one  or  more  of  the  special  defenses  pleaded.  Amer.  Cent.  Ins. 
Co.  vs.  Bothchild,  82  111.,  166. 

An  instruction  which  tells  the  jury,  if  the  plaintiff  has  made 
out  his  case  as  laid  in  his  declaration,  they  must  find  for  the 
plaintiff,  is  not  liable  to  the  objection  that  it  makes  the  jury  the 
judges  of  the  eifect  of  the  averments  in  the  declaration ;  it  merely 
empowers  tliem  to  determine  whether  the  proof  introduced  sus- 
tains the  averments  made  in  the  pleadings,  wdiich  they  may  well 
do.      O.  <:6  M.  Rij.  Co.  vs.  Porter,  92  111.,  437. 

§  18.  Construction  of  Contracts. — It  is  the  court,  that  determines 
the  construction  of  a  contractt.  They  do  not  state  the  rules  aiid 
principles  of  law  by  which  the  jury  are  to  be  bound  in  constru- 
ing the  language  which  the  ])arties  have  used  in  making  the 
contract.  They  give  to  the  jnry  as  matters  of  law  what  the  legal 
construction  of  the  contract  is,  and  this  the  jury  are  bound  abso- 
lutely to  take.     Eijser  vs.   Weissgerher,  2    la.,  463:  Lowrij  vs. 


Til  EI  U    FORM    AND    REQUISITES,  19 

Megee,  52  Ind.,  lUT;  Kamphouse  vs.  Gaffner,  73  111.,  453; 
Curtis  vs.  Martz,  14  Mich.,  506. 

AVhat  the  terms  of  a  contract  are  (if  not  in  writing)  is  a  f|ues- 
tion  of  fact  for  the  jury,  but  its  meanini^  and  legal  effect  are 
questions  of  law  for  the  court.  Therefore  it  is  not  proper  in  an 
instruction  to  submit  to  the  jury  the  question  of  a  party's  rights 
under  a  contract.  Goddard  \s,.  Foster^  ITAVall.,  123;  Thomas 
vs.  Thomas,  15  13.  Men.,  ITS;  Belden  vs.  Woodmansee,  81  111., 
25 ;  Lucas  vs.  Snyder,  2.  G.  Gr.,  499. 

Where  a  register's  certificate  of  purchase  was  given  in  evi- 
dence, it  was  held  proper  to  instruct  the  jury  that  the  certificate 
was  evidence  of  title  in  the  person  to  whom  it  was  issued,  and 
that  a  judgment  and  execution  against  such  person,  together 
with  a  sheriff's  deed  thereunder,  conveyed  the  title  to  the  grantee 
therein.  While  instructions  should  not  assume  the  existence  of 
facts,  still  it  is  proper  for  the  court  to  direct  the  jury  as  to  the 
legal  effect  of  the  evidence  admitted.  Strihling  vs.  Prettyman, 
57  111.,  371 ;  State  vs.  Belong,  12  la.,  453 ;  Durham  vs.  Daniels, 
2  Greene,  518. 

If  a  contract  is  ambiguous  in  its  terms  it  is  the  duty  of  the 
court  to  determine  what  it  means  from  the  evidence,  and  instruct 
the  jury  as  to  its  meaning.      Ogden  vs.  Kirhy,  79  111.,  555. 

While  instructions  should  not  assume  the  existence  of  facts, 
which  must  be  found  by  the  jury,  still  it  is  proper  for  the  court 
to  direct  the  jury  as  to  the  legal  effect  of  documentary  evidence 
admitted.  Strihling  vs.  Prettymnan,  57  111.,  371;  Hanson  vs. 
Eastman,  21  Minn.,  509;  Loiory  vs.  Megee,  52  Ind.,  107. 

§  19.  Should  be  Conflnedto  the  Issues  Being  Tried. — The  instruc- 
tions of  the  court  should  be  restricted  to  the  issues  made  by  the 
pleadings,  and  to  the  evidence.  Nollen  vs.  Wlsner  et  al.,  11 
la.,  190;  Iron  Mount.  Bank  vs.  Murdoch,  G2  Mo.,  70. 

When  the  declaration  alleges  the  personal  negligence  of  the 
defendant  as  the  gi-ound  of  liability,  it  is  a  fatal  objection  to  the 
instructions  that  they  direct  the  attention  of  the  jury  to  other 
and  different  elements  of  liability.  Ch.  &  Alt.  R.  R.  Co.  \s. 
Mock,  72  111.,  141;  Oolum.,  C.  k-  /.  R.  R.  Co.  vs.  Troesch,  m 
111.,  545. 


20  instructions: 

When  the  plaintiff  dechires  upon  a  completed  sale,  it  is  erro- 
neous for  the  court,  in  instructing  for  liini,  to  submit  to  the  jury 
the  question  of  an  executory  contract  of  sale.  SecJcel  vs.  Scott, 
oO  111.,  106. 

In  an  action  on  a  warranty  it  would  be  error  for  the  court  to 
instruct  the  jury  as  to  what  acts  constitute  fraud.  Wallace  vs. 
Wren,  32  111.,  140. 

Where  in  an  action  upon  an  alleg-ed  express  contract,  evidence 
was  introduced  without  objection,  putting  the  fact  of  such  con- 
tract in  issue,  it  was  held  not  to  be  error  to  instruct  the  jury  with 
reference  to  an  express  contract,  even  though  the  pleadings  put 
in  issue  an  implied  contract  only.  Bogers  vs.  Millard,  44 
la.,  466. 

§  20.  Should  be  Based  on  the  Evidence. — The  instructions  in  all 
cases  should  be  based  on  the  evidence,  and  not  on  the  facts  of 
which  there  is  no  evidence.  Eli  vs.  Tallman,  14  Wis.,  28; 
mil  vs.  Canfield,  56  Penn.  St.,  454;  Howe  S.  Mch.  Co.  vs. 
O.  Laymen,  88  111.,  39;  Atkins  vs.  B'icholson,  31  Mo.,  488. 

An  instruction  is  properly  refused  when  there  is  no  evidence 
tendino-  to  prove  the  hypothetical  state  of  facts  to  which  it  re- 
lates. ^  C,  B.  &  Q.  B.  R.  Co.  vs.  Dickson,  88  IlL,  431. 

It  is  error  to  give  an  instruction  denying  a  party's  right  upon 
an  assumed  state  of  facts  not  shown  by  the  evidence,  and  calcu- 
lated to  give  the  jury  to  understand  that,  as  a  matter  of  law,  the 
party  under  the  contract  was  bound  in  a  certain  way  not  shown 
by  the  evidence.  Harrison  vs.  Cachelin,  27  Mo.,  '^Q',  Frantz 
vs.  B.OSC,  89  111.,  590;  SioarJc  vs.  Mchols,  24  Ind.,  199;  Bogle 
vs.  Kreitzer,  46  Penn.  St.,  465. 

An  instruction,  in  an  action  of  trespass  for  an  assault  and  bat- 
tery, that  the  jury  is  the  sole  judge  of  the  amount  of  damages 
that  the  plaintiff  should  recover,  without  stating  that  the  dama- 
ges should  be  estimated  from  the  evidence,  is  erroneous.  3[ar- 
tin  vs.  Johnson,  89  111.,  537. 

The  jury  should  not  be  Instructed  in  an  action  of  trespass, 
that  they  may  give  punitive  damages  if  they  believe  from  the 
evidence  the  trespass  was  committed  wantonly  or  willfully, 
where  there  are  no  circumstances  of  wantonness  or  willfulness 


TJl  EI  li    FORM    AND    REQUISITES,  21 

to  warrant  such  an  instruction.      Waldron  vs.  Marcier^  82  111., 
550;   Wenger  vs.  Calder,  78  111.,  275. 

It  is  error  to  tell  the  jury  that  it  is  their  duty  to  assess  dam- 
ages if  they  believe  certain  facts.  "Whether  a  plaintiff  has  sus- 
tained damage,  and  if  so,  how  much,  is  a  question  to  be  deter- 
mined by  the  jury;  and  it  is  proper  for  the  court  to  instruct 
them  that  if  they  believe  certain  facts  they  may,  or  they  are  at 
liberty  to,  assess  damages,  but  not  that  it  is  their  duty  to  do  so. 
Chi.  and  N.  W.  Ihj.  Co.  vs.  Chinholm,  79  111.,  584 

§  21.  One  Instruotion  May  be  Limited  by  Others. — Although  an 
instruction,  considered  by  itself,  is  too'  general,  yet  if  it  is  prop- 
erly limited  by  others  given  on  the  other  side,  so  that  it  is  not 
j)robable  it  could  have  misled  the  jury,  judgment  will  not  be 
reversed  on  account  of  such  instruction.  Carrington  vs.  P.  M. 
S.  S.  Co.,  1  Cal.,  475;  Edwards  vs.  Cary,  60  Mo.,  572;  Ken- 
dall vs.  Brown,  86  111.,  387;  Skiles  vs.  Caruthers,  88  111.,  458. 

§  22.  Should  be  Considered  Altogether. — It  is  the  duty  of  the 
jury  to  consider  all  the  instructions  together,  and  when  this 
court  can  see  that  an  instruction  in  the  series,  although  not  stat- 
ing the  law  correctly  is  qualified  by  others,  so  that  the  jury  were 
not  likely  to  have  been  misled,  the  error  will  be  obviated. 
Toledo,  W.  and  W.   R.    W.   Co.  vs.   Ingraham,  77  111.,  309. 

A  charge  to  the  jury  must  be  taken  together,  and  it  is  not 
necessary  to  insert  in  each  separate  instruction  all  the  exceptions, 
limitations  and  conditions  which  are  inserted  in  the  charge  as  a 
whole.     People  vs.  Cleveland,  49  Cal.,  578. 

All  the  instructions  should  be  considered  together,  and  a 
judgment  will  not  be  reversed  because  some  one  of  them  fails 
to  state  the  law  applicable  to  the  facts  with  sufficient  qualifica- 
tion, provided  the  defects  be  cured  in  other  instructions.  Rice 
vs.  The  City,  etc.,  40  Iowa,  638 ;  The  State  vs.  Maloy,  44  Iowa, 
104. 

§  23.  Error  will  not  Always  Reverse. — ^Where  it  appears,  from 
the  evidence,  that  a  verdict  is  so  clearly  right  that  had  it  been 
different  the  courts  should  have  set  it  aside,  such  verdict  will 
not  be  disturbed  merelv  for  the  reason  that  there  is  error  found 


22  instructions: 

ill  the  instruction.  Lundy  vs.  Pierson,  83  111.,  241;  Burling 
vs.  III.  Cent.  Ed.  Co.,  85  111.,  18;  Phillips  vs.  Ocmtdgee,  etc., 
55  Ga.,  633. 

The  refusal  of  instructions,  which,  though  containing  correct 
propositions,  could  not,  in  view  of  all  the  facts  developed  by  the 
evidence,  have  prejudiced  the  party  complaining,  will  not 
operate  to  reverse  the  case.  Cross  vs.  Garrett,  35  Iowa,  480; 
Cook  et  al.  vs.  Eohinson,  42  Iowa,  474. 

Must  be  Construed  in  Connection  witli  the  Evidence. — A  charge  given 
by  the  court  must  be  construed  in  connection  with  the  evi- 
dence in  the  case.  It  is  sufficient  if  the  instructions  are  correct 
when  considered  with  reference  to  the  case  upon  trial  and 
the  facts  sought  to  be  established.  State  vs.  Downer,  21  Wis., 
275;  Huffman  vs.  Ackley,  34  Mo.,  277. 

§  24  When  Error  will  Reverse. — When  a  case  is  close  in  its  facts, 
or  when  there  is  a  conflict  in  the  evidence  on  a  vital  point  in  the 
case,  the  rights  of  parties  cannot  be  preserved  unless  the  jury 
are  accurately  instructed.  Toledo,  etc.,  Ey.  Co.  vs.  ShucJcman, 
50  Ind.,  42;   Wahash  Ed.  Co.  vs.  TIen7.:8,  91  111.,  400. 

An  instruction  which  has  a  tendency  to,  and  probably  did, 
mislead  the  jury  when  taken  singly,  is  erroneous,  even  though 
the  instructions,  when  taken  together,  embrace  the  law  of  the 
case.  Price  vs.  Mahoney,  24  Iowa,  582 ;  Pittsburg,  etc.,  Ey. 
Co.  vs.  Krouse,  20  Ohio  St.,  223. 

§  25.  Should  he  Harmonious. — The  giving  of  a  correct  instruc- 
tion upon  a  point  in  the  case,  will  not  obviate  an  error  in  an 
instruction  on  the  other  side,  when  they  are  entirely  varient  and 
there  is  nothing  to  show  the  jury  which  to  adopt.  III.  Linen 
Co.  vs.  Hough,  91  111.,  63;  Vanslyck  vs.  Mills  et  al.,  34  Iowa, 
375.. 

One  correct  instruction  will  not  always  cure  an  erroneous  one. 
The  court  should  harmonize  the  instructions,  else  they  are  cal- 
culated to  confuse  and  mislead  the  jury.  Quinn  vs.  Donovan, 
85  111.,  194. 

Where  one  instruction  states  the  defendant's  liability  more 
strongly  than  the  law  warrants,  and  another  of  the  series  states 


TnEIIi    FORM    AND    KEQUISITES.  23 

it  correctly,  and  the  two  instructions  relate  to  vital  points  in 
issue,  they  are  calculated  to  confuse  the  jury,  and  the  latter 
instruction  will  not  cure  the  error,  Steinmeyer  vs.  The  People^ 
95  in..  383. 

§  26.    Instructions  must  Require  the  Jury  to  Believe  from  the  Evidence. 

An  instruction  Avdiich  does  not  requii-e  the  jury  to  "believe  from 
the  evidence"  the  facts  assumed  in  it,  is  objectionable  even  if 
the  law  in  the  instruction  is  correctly  stated.  Parker  vs.  Fisher^ 
39  111.,  164. 

It  is  not  necessary  that  a  jury  should  be  told  in  each  sentence 
of  an  instruction  that  they  should  believe  from  the  evidence. 
If  the  iirst  part  of  the  instruction  contains  this  clause  a  jury  of 
intelligent  men  will  not  be  misled  if  it  is  omitted  in  the 
remaining  portion.      Gizler  vs.  Witzel^  82  111.,  322, 

It  is  error  to  instruct  the  jury  that  it  is  necessary  for  the 
plaintiif  to  prove  a  material  fact,  or  that  it  should  be  made  to 
apj^ear  from  the  evidence  ''to  the  satisfaction  of  the  jury ." 
The  jury  in  a  civil  case  are  to  decide  facts  upon  the  weight  or 
preponderance  of  the  evidence,  even  though-  the  proof  does  not 
show  such  facts  to  their  satisfaction.  Stratton  vs.  Cent.  City 
Horse  By.  Co.,  95  111.,  25. 

§  27.  Instinictions  Need  Not  be  Repeated,  When. — AYlien  the  law 
applicable  to  a  case  is  given  in  clear  and  intelligible  language, 
the  sole  function  of  instructions  is  performed,  and  there  is  no 
necessity  for  repeating  the  same  idea  in  different  instructions 
varying  only  in  form.  The  court  is  not  only  under  no  obliga- 
tion to  permit  a  case  to  be  argued  through  instructions,  but  it  is 
bound  to  prohibit  it.  Anderson  vs.  Walter,  34  Mich.,  113; 
Keeler  vs.  Stuj)pe,  86  111.,  309. 

The  right  of  a  party  to  ask  instructions  must  have  some  limit, 
and  the  supreme  court  will  not  sustain  an  abuse  of  this  right. 
Fisher  vs.  Stevens,  16  111.,  397. 

It  is  not  erroneous  to  refuse  to  give  instructions  asked  for, 
however  correct  or  applicable,  if  they  have  in  substance  already 
been  given  in  the  charge  of  the  court.  State  vs.  Stanley,  33  la., 
526;  Cramer  \^.  The  City  of  Burlington,  42  la.,  315;  Scott 
vs.  Delaney,  87  111.,  146. 


24  instructions; 

§  28.  Instructiu^  as  in  Case  of  Nonsuit. — It  is  not  the  province  of 
the  court  to  decide  upon  the  sufficiency  of  the  testimony  per- 
taining; to  the  facts  in  the  case,  nor  to  order  the  jury  upon  the 
facts  to  find  for  either  party.  Oleson  v?^.  Ilemlrickson,  12  la., 
222;  Rohl)iso)i  vs.  III.  O.  I?.  R.  Co.,  30  la.,  401. 

It  is  the  settled  practicje  never  to  instruct  the  jury  as  to  the 
weight  of  evidence.  When  conllicting,  or  tending  to  prove  the 
issue,  however  slightly,  it  must  be  left  to  the  consideration  of 
the  jurv.  But  when  it  essentially  varies  from  the  pleadings  and 
fails  to  sustain  the  issue,  the  court  may,  and  should  when  asked, 
exclude  it  from  the  consideration  of  the  jury.  Excluding  the 
evidence  amounts  to  the  same  thing  as  instructing  the  jury  to 
find  for  the  defendant,  as  either  course  produces  the  same  result. 
House  vs.   Wilder,  47  111.,  510. 

Where  there  is  any  one  essential  allegation  of  a  declaration 
which  has  no  proof  tending  to  support  it,  it  is  the  duty  of  the  court 
to  exclude  from  the  consideration  of  the  jury  all  the  evidence  in 
the  case,  or  to  charge  the  jury  that  there  is  no  evidence  to  sup- 
port such  essential  allegation,  and,  for  want  of  such  proof,  to 
find  for  the  defendant.  Whether  there  is  any  evidence  tending 
to  prove  any  material  allegation  of  a  declaration  is  a  question  of 
law  for  the  court  to  determine.  Poleman  vs.  Johnson,  84 
111.,  269. 

Contra — When  there  is  no  conflict  in  the  evidence,  the  court 
may  direct  the  verdict  or  order  a  nonsuit.  Greening  vs.  Bishop, 
39  Wis.,  552;  Johnson  vs.  Moss,  45  Cal.  515. 

§  29.  Error  in  Admitting:  Evidence,  Obviated  By. — If  incompetent 
evidence  is  permitted  to  be  introduced,  which  the  court  after- 
wards instructs  the  jury  not  to  consider,  no  prejudice  is  wrought 
by  its  introduction.      Cook  et  al.  vs.  Rohinson,  42  la.,  474. 

When  Not  Obviated  By. — An  error  in  the  admission  of  evidence 
is  not  obviated  by  an  instruction  to  disregard  such  evidence,  un- 
less the  case  is  such  that  it  clearly  appears  no  injustice  or  wrong 
has  been  done  to  the  party  complaining.  Howe,  etc.,  Co.  vs. 
Rosine,  87  111.,  105. 

Effect  of  Evidence,  Limited  By. — If  evidence  is  admitted  compe- 
tent for  one  purpose  which  nuiy  have   an   improper  effect,  the 


TIIEIU    FORM    AND    REQUISITES.  25 

party  aggrieved  should  ask  an  instruction  explaining  its  legitimate 
effect.  Prior  vs.  White,  12  III,  261;  Allison  vs.  C.  dd  iV.  W. 
R.  E.  Co.,  42  la.,  274. 

Evidence  admitted  without  objection  cannot  be  excluded  from 
the  consideratio!!  of  the  jury  by  instructions.  Becker  vs.  Becker, 
45  la.,  239. 

§  30.  The  Jury  May  Come  in  for  Further  Instructions. — A  jury 
may  be  called  into  court  for  further  instructions,  either  by  agree- 
ment of  counsel,  or  at  their  own  request.  State  vs.  Pitts,  11 
la.,  343 ;  Zc6  vs.  Quirk,  20  III,  392;  O' Shields  vs.  State,  5 li 
Ga.,  696. 

If  the  jury  should  find  an  insufficient  verdict,  the  court  may 
send  them  out  under  instructions  to  find  formally  and  fully,  so 
as  to  determine  the  rights  of  the  parties.  Flinn  vs.  Barlow, 
16  111.,  39. 

§  31.  The  (firing  of  Further  Instructions  is  in  the  Discretion  of  the 
Court.— When  the  jury  in  a  criminal  case  return  into  court  and  say 
that  they  cannot  agree,  it  is  competent  for  the  court,  of  its  own 
motion,  to  give  them  any  additional  instruction,  proper  in  itself, 
which  may  be  necessary  to  meet  the  difficulties  in  their  minds. 
State  vs.  Pitts,  11  la.,  343;  Hogg  vs.  State,  7  Ind.,  551. 

A  fresh  discussion  of  the  law  or  the  evidence,  on  the  j)art  of 
counsel  in  the  presence  of  the  jury,  cannot  be  had,  unless  allowed 
by  the  judge,  in  his  discretion;  nor  is  the  judge  required  to  give 
additional  instructions  at  the  request  of  either  party.  In  such 
matters  much  must  be  left  to  the  discretion  of  the  judge. 
Nelson  vs.  Dodge,  116  Mass.,  367. 

After  a  jury  retire  to  consider  their  verdict  and  come  into 
court  for  further  instructions,  it  is  irregular  to  give  such  instruc- 
tions in  the  absence  of  a  party.  Davis  vs.  Fish,  2  G.  Gr.,  447 ; 
O^ Connor  ys,.  Guthrie  et  al.,  11  la.,  80;  Campbell  vs.  Beckett^ 
8  Ohio  State,  210.     Hoherg  vs.  State,  3  Minn.,  262. 

§  32.  Court  May  Limit  the  Time  for  Instructions. — Circuit  courts 
have  the  power,  by  reasonable  and  proper  rules,  to  prescribe 
within  what  time  during  the  progress  of  the  trial,  the  instructions 
must  be  presented  to  the  court.  Prindiville  vs.  The  People^ 
42  111.,  217. 


26  instructions:    their  form  and  requisites. 

§  33.  In  (.'runinal  Cases  the  Jury  are  the  Judges  of  the  Law  as  well  as  of 
the  Facts  of  the  Case.— In  some  states. — While  it  is  true,  in  the  fullest 
sense,  that  a  jury,  in  a  criminal  case,  are  the  judges  both  of  the 
fact  and  of  the  law,  and  may  be  so  instructed  by  the  court,  they 
should  then  be  left  to  their  own  responsibility  alone  to  decide 
on  the  guilt  or  innocence  of  the  prisoner,  giving  him  the  benefit 
of  all  reasonable  doubts,  without  any  reference  to  the  possible 
future  action  of  the  court.  Hdk  vs.  The  Peojple^  42  111.,  331; 
Schnier  vs.  The  People,  23  111.,  17. 

In  the  case  of  Schnier  vs.  The  People,  the  court  qualified  the 
general  instruction  that  "the  jury  are  the  judges  of  the  law  as 
well  as  of  the  facts,"  as  follows: 

"If  the  jury  can  say  upon  their  oaths  that  they  know  the  law 
better  than  the  court  does,  they  have  the  right  to  do  so;  but 
before  assuming  so  solemn  a  responsibility  they  should  be  sure 
that  they  are  not  acting  from  caprice  or  prejudice;  that  they 
are  not  controlled  by  their  will  or  their  wishes,  but  from  a  deep 
and  confident  conviction  that  the  court  is  wrong  and  that  they 
are  right.  Before  saying  this  upon  their  oaths  it  is  their  duty 
to  reflect  whether  from  their  habits  of  thought,  their  study  and 
experience,  they  are  better  qualified  to  judge  of  the  law  than 
the  court.  If  under  all  these  circumstances  they  are  prepared 
to  say  that  the  court  is  wrong  in  its  exposition  of  the  law,  the 
statute  has  given  them  the  right."  Schnier  vs.  The  People,  23 
111.,  17.     See,  also,  Mullinix  \q.  The  People,  76  111.,  211. 


PAET    II. 

Instructions  in  Civil  and  Crinn- 
inal  Cases. 


PART  II. 

INSTRUCTIONS 


CREDIBILITY  OF  WITNESSES— WEIGHT  OF  TESTIMONY. 

The  Credibility  <>f  the  Witnesses  and  the  Weif?lit  of  the  Testimony  are 
(Questions  of  Fact  for  the  Jury. — The  court  iiistriK'ts  the  jury,  that 
the  credibility  of  the  wituesses  is  a  question  excbisively  for  the 
jury;  and  the  hiw  is,  that  where  a  number  of  witnesses  testify 
directly  opposite  to  each  other,  the  jury  are  not  bound  to  regaivl 
the  weif>;lit  of  the  evidence  as  evenly  balanced.  The  jury  liavo 
a  right  to  determine  froui  the  appearance  of  the  witnesses  on 
the  stand,  their  manner  of  testifying,  their  apparent  candor  aud 
fairness,  their  apparent  intelligence  or  lack  of  intelligence,  aud 
fi-om  all  the  other  surrounding  circumstances  appearing  on  the 
trial,  which  witnesses  are  the  more  worthy  of  credit,  and  to  give; 
ci-edit  accordingly.  Wallace  vs.  State,  28  Ark.,  531 ;  Jlolloway  vs. 
Com.,  11  Bush,  ;U4;  Stampofski  vs.  Stefens,  79  111.,  '30:]. 

That  the  jury  ai-e  the  judges  of  the  credibility  of  the  witnesses, 
and  of  the  weight  to  be  attached  to  the  testimony  of  each  and 
all  of  them;  and  the  jury  are  not  bound  to  take  the  testiuiony  of 
any  witness  as  absolutely  true,  and  they  should  not  do  so,  if  they 
are  satisfied  from  all  the  facts  and  circumstances  proved  on  the 
trial,  that  such  witness  is  mistaken  in  the  matters  testified  to  by 
him,  or  that,  for  any  other  reason,  his  testimony  is  untrue  or 
uui-eliable. 

The  jury  are  instru(tted,  that  they  are  the  judges  of  the  credit 
that  ought  to  be  given  to  the  testimony  of  the  different  wit- 
nesses, and  they  are  not  bound  to  believe  anything  to  be  a  fact 
because  a  witness  has  stated  it  to  be  so — provided  the  jury 
Ijclieve,  from  all  the  evidence,  that  such  witness  is  mistaken  or 
hus  knowingly  testified  falsely. 


30  CREDIBILITY  or  witnesses: 

Circumstances  Affecting  the  Credit  of  .1  Witness. — The  jury  are  in- 
structed that,  in  determinino-  the  weio-ht  to  be  ij-iven  to  the  testi- 
monyof  the  different  witnesses  in  this  case,  the  jnry  are  authorized 
to  consider  the  relationship  of  the  witnesses  to  the  parties,  if  the 
same  is  proved;  their  interest,  if  any,  in  the  event  of  the  suit; 
their  temper,  feeling  or  bias,  if  any  lias  been  sliown ;  their  de- 
meanor while  testifying;  their  apparent  intelligence,  and  their 
means  of  information;  and  to  give  such  credit  to  the  testimony 
of  each  witness  as,  under  all  the  circumstances,  such  witness 
seems  to  be  entitled  to.     Ammennan  vs.  Teeter,  49  111.,  400. 

In  determining  the  issues  in  this  case,  the  jury  should  take 
into  consideration  the  whole  of  the  evidence,  and  all  the  facts 
and  circumstances  proved  on  the  trial,  giving  to  the  several  parts 
of  the  evidence  such  weight  as  the  jury  think  they  are  entitled  to. 
And  in  determining  the  weight  to  be  given  to  the  testimony  of 
the  several  witnesses,  the  jury  should  take  into  consideration 
their  interest  in  the  event  of  the  suit,  if  any  such  is  proved; 
their  conduct  and  demeanor  while  testifying;  their  apparent 
fairness  or  bias,  if  any  such  appears;  their  appearance  on  the 
stand ;  the  reasonableness  of  the  story  told  by  them ;  and  all  the 
evidence  and  circumstances  tending  to  corroborate  or  contradict 
such  witnesses,  if  any  such  are  proved.       Evans  vs.  Lipscomb, 

31  Ga.,  71;  French  vs.  Millard,  2  Ohio  St.,  44. 

The  court  instructs  the  jury,  that  in  passing  upon  the  testi- 
mony of  the  witnesses  for  the  defendant,  the  jury  have  a  right  to 
take  into  consideration  any  interest  which  such  witnesses  may 
feel  in  the  result  of  this  suit,  if  any  is  proved,  growing  out  of 
their  relationship  to  the  defendant  or  otherwise,  and  to  give  to  the 
testimony  of  such  witnesses  only  such  weight  as  they  think  it 
entitled  to,  under  all  the  circumstances  proved  on  the  trial. 

If  the  jury  believe,  from  the  evidence,  that  any  witness  has 
testified  under  a  fear  of  losing  his  employment,  or  a  desire  to 
avoid  censure,  or  a  fear  of  offending,  or  a  desire  to  please  his 
employer,  then  such  fact  may  be  taken  into  account  by  the  jury 
in  determining  the  degree  of  weight  which  ought  to  be  given  to  the 
testimony  of  such  witness ;  and  in  such  case  the  jury  have  a  right  to 
judge  of  the  effect,  if  any,  li^.iely  to  be  produced  upon  the 
human  mind   by  such  feelings  or  motives,  and   how  far  such 


■WEIGHT    OF    TESTIMONY.  31 

feelings  or  motives,  on  tlie  pai't  of  a  witness,  may  tend  to  warp 
his  judgment  or  pervert  the  truth;  and  tlie  jnry,  after  applying 
their  own  knowledge  of  human  nature,  and  of  tlie  philosojdiy 
of  the  human  mind,  to  the  investigation  of  the  subject,  are  to 
judge  of  the  weiglit  which  ought  to  l)e  given  to  tlie  testimony 
of  such  witness,  taking  the  same  in  connection  with  all  the  other 
evidence  in  the  case. 

That  when  witnesses  are  otherwise  equally  credible,  and  their 
testimony  otherwise  entitled  to  equal  weight,  greater  weiglit  and 
credit  should  be  given  to  those  whose  means  of  information 
were  superior;  and  also  to  those  who  swear  affirmatively  to  a 
fact,  rather  than  to  those  who  swear  negatively,  or  to  a  want  of 
knowledge  or  want  of  recollection. 

In  weighing  the  testimony  of  any  or  either  of  the  witnesses 
in  this  case,  the  jury  may  regard  the  apparent  capacity  and 
intelligence  of  such  witness,  and  judge  from  the  evidence, 
whether  he  was  able  to  see  and  understand  the  transaction,  and 
also  whether  he  was  attentive  or  careless,  or  apparently  preju- 
diced or  dispassionate;  and  also  whether,  judging  from  the 
evidence,  he  has  any  sinister  motive  that  might  lead  him  to 
fabricate  that  which  he  did  not  see.  People  vs.  Bodine,  1  Edm. 
Sel.  Cas.,  36. 

One  Credible  Witness  may  be  Entitled  to  More  Credit  than  a  Number  of 
Others. — The  court  instructs  the  jury,  that  the  testimony  of  one 
credible  witness  is  entitled  to  more  weight  than  the  testimony  of 
many  others,  if  as  to  those  other  witnesses  the  jury  have 
reason  to  believe,  and  do  believe,  from  the  evidence  and  all  the 
facts  before  them,  that  such  other  witnesses  have  knowingl}'^ 
testified  untruthfully,  and  are  not  corrol)orated  by  other  credible 
witnesses,  or  by  circumstances  proved  in  the  case. 

The  Jury  have  no  Right  to  Disregard  the  Testimony  of  any  TTitness 
without  Cause. — The  jury  are  instructed,  that  if  the  testimony 
of  a  witness  appears  to  be  fair,  is  not  unreasonable,  and  is 
consistent  with  itself,  and  the  witness  has  not  been  in  any 
manner  impeached,  then  tlie  jury  have  no  right  to  disregard  the 
testimony  of  such  witness  from  mere  caprice,  or  without  cause. 
It  is  the  duty  of  the  jury  to  consider  the  whole  of  the  evidence 


32  CREDIIULITY    OF    WITNESSES! 

and  to  render  their  verdict  in  accordance  with  the  weight  of 
all  the  evidence  in  the  case.  City  Bank,  etc.,  vs.  Kent,  57  Ga., 
283;  Smith  vs.  Grimes,  43  la.,  35G;  Boclford,  E.  I.  cfc  St.  L. 
Ed.  Co.  vs.  Coultars,  G7  111.,  398. 

That  while  it  is  the  duty  of  the  jury  to  carefully  scrutinize 
and  dispassionately  weigh  the  evidence  of  all  the  witnesses  in 
the  case,  still  it  is  the  sworn  duty  of  the  jury  to  give  proper 
credit  to  the  evidence  of  each  and  all  of  the  witnesses ;  and  if 
possible  to  reconcile  all  of  the  evidence  in  the  case  with  the  pre- 
sumption that  each  witness  has  intended  to  speak  the  truth, 
unless  by  their  manner  of  testifying  on  the  witness  stand,  or  by 
inconsistent  statements  sworn  to,  or  by  testimony  inconsistent 
with  other  credible  evidence  in  the  case,  the  jury  are  led  to 
believe  that  the  testimony  of  some  one,  or  more,  of  the  wit- 
nesses is  untruthful  or  unreliable,  or  unless  the  jury  are  led  to 
believe,  from  a  manifestation  of  interest,  bias,  or  prejudice,  that 
such  witness  or  witnesses  have  been  inclined  to  exaggerate,  color, 
or  suppress  the  truth,  or  unless  they  have  been  impeached  in 
some  of  the  modes  known  to  the  law,  as  explained  in  these 
instructions. 

When  the  Jury  May  Disregard  the  Testimony  of  a  Witness. — The 

jury  are  instructed,  that  in  determining  the  questions  of  fact 
in  this  case,  they  should  consider  the  entire  evidence  introduced 
by  the  respective  parties ;  but  the  jury  are  at  liberty  to  disregard 
the  statements  of  all  such  witnesses,  if  any  there  be,  as  have 
been  successfully  impeached,  either  by  direct  contradiction,  or 
by  proof  of  having  made  different  statements  at  other  times,  or 
by  proof  of  bad  reputation  for  truth  and  veracity  in  the  neigh- 
borhoods where  they  live-/-except  in  so  far  as  such  witnesses 
have  been  corroborated  by  other  credible  evidence,  or  by  facts 
or  circumstances  proved  on  the  trial.  Miller  vs.  The  People, 
39  111.,  458.     Bowers  vs.  The  People,  74  IlL,  418. 

The  Jury  Should  Reconcile  the  Testimony  if  Possible. — It  is  the  duty 
of  the  jury  in  passing  upon  the  credibility  of  the  testimony  of 
the  several  witnesses,  to  reconcile  all  the  different  pai-ts  of  the 
testimony  if  possible.  It  is  only  in  cases  where  it  is  palpable 
that  a  witness  has,  deliberately  and  intentionally,  testified  falsely 


WEIGHT    OF    TESTIMONY.  66 

as  to  some  material  matter,  and  is  not  corroborated  by  other 
evidence,  that  a  jury  is  warranted  in  disregarding  his  entire 
testimony.  Although  a  witness  may  be  mistaken  as  to  some 
part  of  his  evidence,  it  does  not  follow,  as  matter  of  law,  that  he 
has  willfully  told  an  nntruth,  or  that  the  jury  would  have  the 
right  to  reject  his  entire  testimony. 

It  is  the  duty  of  the  jury  to  consider  carefully  all  the  testi- 
mony in  this  case  bearing  npon  the  issues  of  fact  submitted  to 
them,  and  if  possible,  to  reconcile  any  and  all  apparently  con- 
flicting statements  of  the  witnesses,  and  if  the  jury  find  it  prac- 
ticable to  deduce  from  the  evidence  any  theory  of  the  case 
which  will  harmonize  the  testimony  of  all  the  witnesses,  it  will 
be  the  duty  of  the  jury  to  adopt  that  theory,  rather  than  one 
which  would  require  them  to  reject  any  of  the  testimony  as  in- 
tentionally false.     Rudolph  vs.  Lane^  57  lud.,  115. 

The  jury  are  further  instructed,  that  if,  after  a  full  and  fair 
consideration  thereof,  they  shall  be  unable  to  reconcile  the  state- 
ments of  all  the  witnesses  in  relation  to  the  matters  pertinent 
to  the  issues  submitted  to  the  jury,  then  it  will  be  their  duty  to 
consider  on  which  side  is  the  preponderance  of  evidence,  and  to 
find  their  verdict  in  accordance  therewith. 

Impeachment  of  TVitnesses. — If  the  jury  believe,  from  the  evi- 
dence, that  the  witness  A.  B.  has  been  successfully  impeached 
on  this  trial,  or  that  he  has  willfully  sworn  falsely  as  to  any 
matter  or  thing  material  to  the  issues  in  this  case,  then  the  jury 
are  at  liberty  to  disregard  his  entire  testimony,  except  in  so  far 
as  it  has  been  corroborated  by  other  credible  evidence,  or  by 
facts  and  circumstances  proved  on  the  trial.  Bowers  vs.  The 
People,  T4:  111.,  418;  Gill  vs.  Crosby,  03  111.,  190. 

Willfully  Sweai-in^  Falsely. — If  the  jury  believe,  from  the  evi- 
dence, that  the  witness  A.  B.  has  willfully  sworn  falsely  on  this 
trial  as  to  any  matter  or  thing  material  to  the  issues  in  the  case, 
then  the  jury  are  at  liberty  to  disregard  his  entire  testimony, 
except  in  so  far  as  it  has  been  corroborated  by  other  credible 
evidence,  or  by  facts  and   circumstances  proved  on  the  trial. 

Pierce  vs.  State.  53  Ga.,  365. 

3 


34:  CREDIBILITY    OF    WITNESSES.* 

Bad  Reputation  for  Truth,  Etc. — The  court  further  instructs  the 
jury,  that  if  they  l)elieve  from  the  evidence  that  the  witness  A. 
B.  is  a  person  of  had  reputation  for  truth  and  veracity  in  the 
neighborhood  where  he  resides,  then  as  a  matter  of  hxw  this  fact 
tends  to  discredit  his  testimony,  and  the  jury  may  entirely  dis- 
regard it,  except  in  so  far  as  he  is  corroborated  by  other  credible 
testimony,  or  by  facts  and  circumstances  proved  on  the  trial. 

The  court  instructs  the  jury,  that  one  of  the  modes  recognized 
by  law  for  impeaching  the  veracity  of  a  witness,  is  the  intro- 
duction of  persons  as  witnesses  who  testify  that  they  are 
acquainted  with  the  general  character  for  truth  and  veracity,  of 
the  person  sought  to  be  impeached,  in  the  neighborhood  in 
which  he  resides;  and  if  the  jury  believe,  from  the  evidence  in 
this  case,  that  the  character  of  the  witness  A.  B.  for  truth  and 
veracity  in  the  neighborhood  where  he  resides,  is  bad,  then  the 
jury  have  a  right  to  disregard  the  whole  of  his  testimony,  and 
to  treat  it  as  untrue,  except  where  it  is  corroborated  by  other 
credible  evidence,  or  by  facts  and  circumstances  proved  on  the 
trial. 

Different  Statements  Out  of  Court. — The  court  instructs  the  jury, 
that  one  of  the  modes  of  impeaching  a  witness,  is  by  showing 
that  he  has  made  statements  out  of  court  at  variance  with  his 
statements  on  the  witness-stand;  and  if  tlie  jury  believe,  from  the 
evidence,  that  the  witness,  A.  B.,  has  made  statements  at  another 
time  and  place  at  variance  with  his  evidence  in  this  case,  regard- 
ing any  material  matter  testified  to  by  him,  tlien  it  is  the  prov- 
ince of  the  jury  to  determine  to  what  extent  this  fact  tends  to 
impeach,  either  his  memory  or  his  credibility,  or  detracts  from 
the  weight  which  ouglit  to  be  given  to  his  testimony.  Craig/ 
vs.  Rohrer,  G3  111.,  325;  Glaze  vs.   W/diley,  5  Oreg.,  164. 

Tliat  the  credit  of  a  witness  may  be  impeached  by  proof  that 
he  has  made  statements  out  of  court  contrary  to  what  he  has 
testified  on  the  trial,  and  if  the  jury  believe  from  the  evidence 
that  the  witness  A.  B.  made  statements  out  of  court  on  etc. — to 
etc. — contrary  to  what  he  has  sworn  upon  the  trial  upon  any  mate- 
rial matter,  then  these  contradictory  statements  would  tend  to 
impeach  the  witness,  and  the  jury  would  be  justified  in  reject- 


WEIGHT    OF    TESTIMONY 


35 


ing  his  testimony  if,  from  all  the  other  evidence  in  the  case,  they 
believe  such  testimony  to  be  untrue. 

Contradictory  Statements  Out  of  Court.— If  the  jury  believe,  from 
the  evidence,  that  the  witness  A.  B.,  before  testifying  in  this 
case,  has  made  any  statements  out  of  court  concerning  any  of 
the  material  matters,  materially  different  and  at  variance  with 
what  he  has  stated  on  the  witness-stand,  then  the  jury  are  in- 
structed by  the  court  that  these  facts  tend  to  impeach  either  the 
recollection,  or  the  truthfulness  of  the  witness,  and  the  jury 
should  consider  these  facts  in  estimating  the  weight  which 
ought  to  be  given  to  his  testimony. 

Jury  Need  Not  Disregard  Testimony  of  Impeached  Witness. — Notwith- 
standing witnesses  may  be  discredited  by  impeaching  evidence, 
their  testimony  ought  not  to  be  wholly  disregarded  if  it  is  sustained 
by  the  corroborating  evidence  of  circumstances,  or  of  other  cred- 
ible w^itnesses.     Smith  et  al.  vs.  Grimes  et  al.^  43  la.,  356. 

The  court  instructs  the  jury,  that  while  the  law  permits  the 
impeachment  of  a  witness,  by  proving  his  general  reputation  for 
truth  and  veracity,  in  the  neighborhood  where  he  resides,  to  be 
bad ;  still  the  degree  of  credence  to  which  such  a  witness  is  en- 
titled, and  the  weight  to  be  attached  to  his  testimony,  are  matters 
to  be  determined  by  the  jury  and  by  them  alone,  in  view  of  all 
the  evidence  and  of  all  the  facts  and  circumstances  proved  on 
the  trial. 

And  in  this  case,  if  you  believe  from  the  evidence  that  the 
witness  A.>B.,  while  upon  the  witness-stand,  gave  a  fair,  candid 
and  honest  statement  of  the  facts  and  circumstances  surround- 
ing the  transaction  in  question,  then  the  jury  should  not  dis- 
regard his  testimony,  but  they  should  give  it  such  faith  and 
credit  as  in  their  opinion  it  is  entitled  to. 

The  testimony  of  a  witness  who  has  been  impeached  ought 
not  to  be  wholly  disregarded  by  the  jury  if  they  feel  justified, 
from  his  deportment  upon  the  stand,  or  the  probability  of  his 
testimony,  in  believing  it,  even  if  it  receives  no  other  corrobora- 
tion.    Green  vs.  Cochran^  43  la.,  544. 


86  CKEDIBILITYOFWITXESSES: 

Contradictory  Statements  Out  of  Court  Explained. — The  court  in- 
structs the  jury,  that  if  they  believe  that  the  witness  A.  B.,  out 
of  court  and  not  under  oath,  stated  to  the  defendant  and  others, 
that  ho  knew  nothing  about  the  matter,  etc. — and  that  the  de- 
fendant had  tohl  him  nothing,  and  that  the  witness,  wlien  under 
oath,  stated  that  his  reason  for  so  saying  was,  because  he  feared  to 
offend  the  defendant  and  others,  and  also  stated  on  oath  that 
the  defendant  did  tell  him,  etc. — then  the  fact  of  the  witness 
making  the  statement  out  of  court  at  variance  with  what  he 
stated  under  oath,  does  not  necessarily  discredit  the  testimony 
of  the  witness  under  oath;  the  jury  should  judge  of  the  credit  of 
the  witness  from  his  whole  statement,  and  give  his  evidence 
such  weight  as  they  believe  it  entitled  to,  in  view  of  all  the  evi- 
dence given  on  the  trial. 

^  Pi-eponderance  of  Evidence. — The  jury  are  instructed,  that  the 
preponderance  of  evidence  in  a  case  is  not  alone  determined  by 
the  number  of  witnesses  testifying  to  a  particular  fact,  or  state 
of  facts.  In  determining  upon  which  side  the  preponderance 
of  the  evidence  is,  the  jury  should  take  into  consideration  the 
opportunities  of  the  several  witnesses  for  seeing  or  knowing  the 
things  about  which  they  testify,  their  conduct  and  demeanor 
while  testifying,  their  interest  or  lack  of  interest,  if  any,  in  the 
result  of  the  suit ;  the  probability  or  improbability  of  the  truth 
of  their  several  statements,  in  view  of  all  the  other  evidence, 
facts  and  circumstances  proved  on  the  trial ;  and  from  all  these 
circumstances  determine  upon  which  side  is  the  weight  or  pre- 
ponderance of  the  evidence.  Mayor  vs.  Mead,  83  111.,  19; 
Wliittaker  vs.  Parker,  42  la.,  585. 

~-  The  court  instructs  the  jury  as  a  matter  of  law,  that  where 
two  witnesses  testify  directly  opposite  to  each  other  on  a  mate- 
rial point,  and  are  the  only  ones  that  testify  directly  to  the 
same  point,  the  jury  are  not  bound  to  consider  the  evidence 
evenly  balanced  or  the  point  not  proved;  the  jury  may  regard 
all  the  surrounding  facts  and  circumstances  proved  on  the  trial, 
and  give  credence  to  one  witness  over  the  other,  if  they  think 
such  facts  and  circumstances  warrant  it.  Miller  vs.  BaUhasser, 
78  111.,  302;  Durant  vs.   Rogers,   87   111.,   508;  Lawrence  vs. 


WEIGHT    OF    TESTIMONY.  37 

Maxwell,  58  Barb.,  511;  Delvee  vs.  Boardman,  20  la.,  446; 
Johnson  vs.   Whidden,  32  Me.,  230. 

The  preponderance  of  evidence  does  not  consist  alone  in  the 
greater  number  of  witnesses  testifying  to  a  particular  fact  or 
state  of  facts.  The  apparent  consistency,  fairness  and  con- 
gruity  of  the  evidence,  and  the  reputation  of  the  witnesses  for 
truth  and  veracity,  where  this  is  shown  by  the  evidence,  are  all 
facts  to  be  considered  by  the  jury  in  determining  the  prepon- 
derance of  the  evidence,  or  either  side.  Rudolph  vs.  Lane,  57 
Iiid.,  115. 

The  jury  are  instructed,  that  although  the  preponderance  of 
the  evidence  is  not  always  determined  by  the  nural)er  of  wit- 
nesses testifying  in  a  case,  yet,  if  in  a  case  there  are  only  one  or 
two  witnesses  who  testify  to  a  given  state  of  facts,  and  six  or 
seven  witnesses  of  equal  candor,  fairness,  intelligence  and  truth- 
fulness, and  equally  well  corroborated  by  all  the  other  evidence, 
and  who  have  no  greater  interest  in  the  result  of  the  suit,  testify 
against  such  state  of  facts,  then  the  preponderance  of  the  evi- 
dence is  determined  by  the  number  of  witnesses. 

The  jury  are  instructed,  that  it  does  not  necessarily  follow  that 
a  plaintiff  has  failed  to  establish  his  case  (or  a  defendant  his  de- 
fense) by  a  preponderance  of  proof,  because  he  has  testified  to 
a  state  of  facts  wnich  are  denied  by  the  testimony  of  the  de- 
fendant. In  such  a  case,  in  arriving  at  the  truth,  the  jnry  have 
a  right  to  take  into  consideration  every  fact  and  circumstance 
proven  on  the  trial,  such  as  the  situation  of  the  parties,  their 
acts  at  the  time  of  the  transaction,  and  afterwards,  so  far  as  they 
aippear  in  evidence;  their  statements  to  third  parties  in  relation 
to  the  matters  in  question,  as  well  as  their  statements  to  each 
other  in  the  presence  of  third  parties,  if  any  such  statements 
have  been  proved,  as  well  as  their  appearance  on  the  witness- 
stand,  and  their  manner  of  testifying  in  the  case. 

When  a  witness  swears  that  a  certain  conversation  did  take 
place  (or  to  a  certain  state  of  facts),  and  another  equally  cred* 
ible  witness,  with  equal  opportunities  for  knowing,  testifies  that 
the  conversation  did  not  take  place  (or  to  a  contrary  state  of 
facts),  if  there  is  nothing  in  the  case  tending  to  corroborate  one 
witness  more  than  the  other,  then  in  law,  such  conversation  (or 


J 


38  CREDIBILITY    OF    witnesses: 

alleged  state  of  facts)  cannot  be  regarded  as  proved  by  a  pre- 
ponderance of  evidence.     State  vs.  Gates,  20  Mo.,  400. 

If  the  jury  believe,  from  the  evidence,  that  the  plaintiff  has 
sworn  positively  that  the  defendant,  etc. — and  that  the  defendant 
has  sworn  just  as  positively  that  he  did  not,  etc. — and  if  the  jury 
further  find,  from  the  consideration  of  all  the  evidence  in  the 
case,  that  the  testimony  of  defendant  is  entitled  to  as  much 
credit  as  that  of  the  plaintiff,  and  corroborated  to  the  same  ex- 
tent, then,  so  far  as  that  point  is  concerned,  the  jury  should  find 
for  the  defendant. 

Negative  Evidence,  "What  Is  Not. — The  court  instructs  the  jniw^ 
that  when  one  or  more  witnesses  testify  to  being  present  upon 
any  occasion,  and  that  certain  facts  then  took  place  (or  that 
certain  words  were  then  spoken),  and  other  witnesses  of  equal 
credibility,  having  equal  means  of  knowing  what  took  place  (or 
what  was  said),  testify  that  they  were  present  on  the  same  occa- 
sion, and  that  such  fact  did  not  take  place  (or  that  the  alleged 
words  were  not  spoken),  then  the  testimony  of  the  latter  wit- 
nesses is  not  what  is  known  as  negative  testimony,  but  it  is  en- 
titled to  be  regarded  by  the  jury  as  affirmative  testimony;  and  in 
such  a  case  it  is  the  duty  of  tlie  jury  to  weigh  all  the  testimony 
and  give  a  verdict  as  the  weight  may  preponderate  to  the  one 
side  or  other.  Sohey  vs.  Thomas,  39  Wis.,  317;  Frizell  vs.  Cole, 
42  111.,  362. 

Proof  as  to  Dates,  Testimony  as  to,  Corroborated. — The  jury  are  in- 
structed, that  whether  little  or  much  reliance  should  be  placed 
upon  the  unaided  memory  of  witnesses  as  to  dates,  and  whether 
greater  weight  should  be  attached  to  testimony  in  regard  to  dates 
accompanied  by  written  memorandum  of  facts,  containing  the 
date  in  question,  are  questions  exclusively  for  the  jury,  and  if 
the  jury  believe  from  the  evidence  that  greater  weight  should 
be  attached  to  the  latter  class  of  testimony,  then  the  jury  should 
give  credit  accordingly. 

r 

IJnrdeii  of  Proof. — The  jury  are  further  instructed,  that  the  bur- 
den of  proof  in  this  class  of  cases  is  always  upon  the  party 
holding  the    aflirmative ;  and  any  matter  asserted  by  one  party 


■VVKKillT    OF    TESTIMONY.  6\J 

and  denied  by  the  other,  can  only  be  proved  in  law  by  a  pre- 
ponderance of  the  evidence;  and  in  this  case,  if  the  jury  find 
from  tlie  evidence  that  the  plaintiff  has  proved  the  alleged  con- 
tracts by  only  one  witness,  and  that  the  contract  has  been  de- 
nied by  one  witness  of  equal  credibility  and  means  of  knowl- 
edge, then  as  a  matter  of  law  such  contract  has  not  been  jH'Oved, 
unless  in  the  minds  of  the  jury  there  have  been  facts  or  circum- 
stances proved  corroborating  the  plaintiff's  witness  sufficient  to 
outweigh  the  testimony  on  the  part  of  the  defendant. 

The  court  instructs  the  jury,  ais  a  matter  of  law,  that  the 
burden  of  proof  is  upon  the  plaintiff,  and  it  is  for  him  to  prove 
his  case  by  a  preponderance  of  the  evidence.  If  the  jury  find 
that  the  evidence  bearing  upon  the  plaintiff's  case  is  evenly  bal- 
anced, or  that  it  preponderates  in  favor  of  the  defendant,  then 
the  plaintiff  cannot  recover,  and  the  jury  should  find  for  the 
defendant. 

Parties. — The  jury  are  instructed,  that  while  our  statute  ren- 
ders parties  to  a  suit  competent  witnesses,  and  allows  them  to 
testify,  still  the  jury  are  the  judges  of  the  credibility  and  weight 
of  such  testimony;  and  in  determining  such  weight  and  credi- 
bility, the  fact  that  such  witnesses  are  interested  in  tlie  result 
of  the  suit,  if  it  so  appears  from  the  evidence,  may  be  taken  into 
account  by  the  jury,  and  they  may  give  such  testimony  only 
such  weight  as  they  think  it  fairly  entitled  to  under  all  the  cir- 
cumstances of  the  case,  and  in  view  of  the  interest  of  such  wit- 
nesses. 

The  court  instructs  the  jury,  as  a  matter  of  law,  that  while 
the  statute  of  this  state  authorizes  a  party  to  a  suit  to  go  upon 
the  stand  and  testify  in  his  own  favor,  he  is  under  no  obligation 
to  do  so;  and  if  he  fails  to  do  so,  the  jury  have  no  right  to  infer 
from  this  fact  alone  anything  prejudicial  to  such  party,  and  no 
intendment  should  be  made  against  him  because  he  does  not 
testify  in  his  own  favor.     Zoioe  vs.  Massey,  02  111.,  47. 

Testimony  of  the  Parties  to  be  Weighed   by  Jury. — The  court  in 
structs  the  jury,  that  while  the  law  makes  the  defendant  (or 
plaintiff)  a  competent  witness   in  this  case,  yet  the  jury  have  a 
vio-lit  to  take  into  consideration  his  situation  and  interest  in  the 

C3 


40  CREDIBILITY    OF    WITNESSES  : 

result  of  your  verdict,  and  all  the  circumstances  which  surround 
him,  and  give  to  his  testimony  only  such  weight  as  in  your  judg- 
ment it  is  fairly  entitled  to. 

Corporations— Witnesses  for,  How  Regarded. — The  jury  are  in- 
structed that  they  have  no  right  to  disregard  the  testimony  of 
defendant's  witnesses  through  caprice,  or  without  cause,  merely 
for  the  reason  that  they  are  in  the  employ  of  a  corporation  (or 
a  railroad  company).  The  credibility  of  the  defendant's  wit- 
nesses should  be  judged  of,  by  the  jury,  precisely  the  same  as 
they  judge  of  the  credibility  of  other  witnesses.  / 

Snits  Against,  to  be  Tried  tlie  Same  as  Otliers. — It  is  the  imperative 
duty  of  the  jury  to  try  this  cause  and  to  decide  it  precisely  the 
same  as  they  wT)uld  if  it  was  a  suit  between  two  individuals; 
and  the  fact  that  the  plaintiff  is  an  individual  and  the  defendant  a 
corporation,  should  make  no  difference  with  the  jury.  In  con- 
sidering and  deciding  the  case  the  jury  should  look  solely  to 
the  evidence  for  the  facts,  and  to  the  instructions  of  the  court 
for  the  law  of  the  case,  and  find  their  verdict  accordingly  with- 
out any  reference  to  who  is  plaintiff  or  who  is  defendant. 

Verbal  Admissions,  How  Weig:lied. — The  court  instructs  the  jury, 
that  although  parol  proof  of  the  verbal  admissions  of  a  party 
to  a  suit,  when  it  appears  that  the  admissions  were  understand- 
ingly  and  deliberately  made,  often  afford  satisfactory  evidence. 
Yet,  as  a  general  rule,  the  statements  of  a  witness  as  to  the 
verbal  admissions  of  a  party  should  be  received  by  the  jury 
with  great  caution,  as  that  kind  of  evidence  is  subject  to  much 
imperfection  and  mistake.  The  party  himself  may  have  been 
misinformed,  or  may  not  have  clearly  expressed  his  meaning,  or 
the  witness  may  have  misunderstood  him;  and  it  frequently 
happens  that  the  witness,  by  unintentionally  altering  a  few  of 
the  expressions  really  used,  gives  an  effect  to  the  statement  com- 
pletely at  variance  with  what  the  party  did  actually  say.  But  it  is 
the  province  of  the  jui'y  to  weigh  such  evidence  and  give  it  the 
consideration  to  which  it  is  entitled,  in  view  of  all  the  other 
evidence  in  the  case.  Martin  vs.  The  Toicn,  etc.,  40  la.,  300; 
Savcland  vs.  Green,  40  Wis.,  431;  Mauro  vs.  Piatt,  Q^IW., 
450. 


WEIGHT    OF    TESTIMONY.  41 

The  jury  are  further  instructed,  as  a  matter  of  law,  that  parol 
evidence  of  the  verbal  admissions  of  a  party  to  a  suit,  may  be 
evidence  of  the  most  satisfactory  character,  or  it  may  be  regarded 
as  belonging  to  the  very  weakest  class  of  testimony,  depending 
upon  the  surrounding  circumstances. 

If  the  jury  can  see,  from  the  evidence,  that  the  alleged  ad- 
missions were  clearly  and  understand ingly  made  by  the  party, 
and  that  they  are  precisely  identified,  and  the  language  correctly 
remembered  and  accurately  repeated  by  the  witness,  then  such 
testimony  is  entitled  to  great  weight. 

But  if  it  appears  to  the  jury,  from  the  circumstances  proved, 
that  the  party  himself  may  have  been  misinformed,  or  may  not 
have  expressed  his  own  meaning  clearly  and  understandingly, 
or  that  the  witness  may  have  misunderstood  him,  or  that  the 
witness  had  no  reason  or  motive  for  remembering  the  exact 
language  used,  or  where,  from  lapse  of  time  or  for  any  other 
reason,  the  jury  can  see  that  the  witness  is  liable  to  be  mistaken, 
or  unable  to  give  the  exact  words  really  used  by  the  party,  or 
their  exact  equivalents,  then  but  little  reliance  should  be  placed 
upon  this  class  of  testimony. 

Admissions,  All  to  be  Considered  Together— Tlie  Surj  may  Believe  Part 
and  Reject  Part. — The  jury  are  instructed,  that  the  rule  of  law, 
that  the  whole  of  a  declaration,  or  an  alleged  confession,  must 
all  be  taken  together  by  the  jury,  and  considered  by  them,  does 
not  mean  that  the  jury  must  believe  it  all,  if  they  acicept  any 
part  of  it  as  true.  The  jury  may  believe  such  parts  of  the 
alleged  declaration  or  statement,  as  in  view  of  all  the  facts  and 
circumstances  proved,  they  believe  are  true  or  credible,  and 
reject  such  portions,  if  any,  as  they  believe  to  be  untrue  or 
unreliable. 

That  while  the  jury  are  not  required  to  give  equal  credence 
to  every  part  of  the  statements  or  admissions  of  the  defendant, 
if  they  believe,  from  the  evidence,  that  any  such  statements  or 
admissions  have  been  proved,  yet  the  whole  of  such  statements 
should  be  carefully  weighed,  and  considered  by  the  jury,  in  the 
light  of  all  the  surrounding  circumstances  appearing  in  evi- 
dence— tlfe  motives  which  may  have  induced  it — its  consistency 
with  the  other  evidence;  and  the  jury,  without  capriciously  or 


42  CREDIBILITY    OF    WITNESSES! 

causelessly  accepting  or  rejecting  any  portion,  should  credit  such 
parts  as  they  find  reason  for  believing,  and  reject  that  part 
which  they  find  reason  for  disbelieving  in  view  of  all  the  facts 
and  circumstances  proved  on  the  trial.  Eiland  vs.  The  State^ 
52  Ala.,  322;  State  vs.  Hollenscheit,  61  Mo.,  302. 

Admissions  to  be  Taken  Alto^etlier— How  to  be  Weighed. — The  ad- 
missions of  a  party,  when  proved,  are  evidence  against  him,  and 
although  such  admissions  are  to  be  taken  together  as  a  whole, 
the  jury  are  not  bound  to  regard  all  parts  of  them  with  equal 
confidence.  The  fact  that  they  are  against  his  interest,  or  in 
favor  of  it,  their  improbability,  inconsistency,  contradiction  or 
corroboration,  by  otlier  facts  in  proof,  are  circumstances  proper 
to  be  considered  by  the  jury  in  determining  the  weight  to  be 
given  to  such  admissions  or  to  the  several  parts  thereof. 

When  Party  not  Estopped  by. — The  jury  are  instructed,  that  the 
admissions  of  a  party  to  a  civil  suit,  knowing  his  rights,  if  clearly 
proved,  are  strong  evidence  against  him;  but  he  is  at  liberty  to 
prove  that  such  admissions  were  mistakenly  made,  or  were  untrue ; 
unless  some  other  person  has  been  induced  by  them  to  alter  his  con- 
dition ;  in  which  case,  as  to  such  persons,  or  those  claiming  under 
them,  he  is  estopped  from  disputing  the  truth  of  his  admissions; 
but  he  is  not  estopped  as  to  other  persons  who  have  not  acted 
upon  the  faith  of  such  admissions.      Bay  vs.  Bell,  2-1  111.,  441:. 

The  court  further  instructs  the  jury,  that  while  the  admissions 
of  a  party  are  competent  evidence  to  go  to  the  jury,  the  party 
against  whom  they  are  shown  is  always  allowed  to  disprove 
them,  if  they  are  not  true.  lie  may  show  that  they  are  not 
true,  but  were  made  for  a  purpose  or  in  ignorance  of  the  facts, 
and  if  he  shows  that  they  were  not  true,  he  will  not  be  bound 
by  them — unless  it  appears  from  the  evidence  that  the  opposite 
party,  or  those  under  whom  he  claims,  have  acted  upon  such 
admissions  and  altered  his  or  their  condition  on  the  faith  of 
such  admissions. 

Offer  to  Compromise,  Party  not  Bound  by. — The  jury  are  instructed, 
that  parties  have  a  right  to  get  together  and  buy  their  *peace,  by 
making  concessions  to  each  other ;  and  any  offer  or  proposition 


WETOIIT    OF    TESTIMONY.  4:o 

of  settlement,  if  made  for  that  jjiirpose  merely,  will  not  he 
bindino-  upon  the  party  as  an  admission  of  the  amount  due  or 
claimed  at  the  time. 

Admissions  in  Affiilavit  for  Continuance. — The  court  instructs  the 
jurv,  that  the  plaintiff,  by  admitting  the  statements  contained  in 
the  affidavit  for  a  continuance,  which  were  read  in  evidence  before 
you,  simply  atlinits  that  if  the  said  witness,  A.  B.,  were  present 
here  as  a  witness  testifying  in  this  case,  he  would  testify  as  stated 
in  the  affidavit;  but  the  plaintiff  does  not  admit  that  such  testi- 
mony would  be  the  truth ;  he  has  the  same  right  to  contradict 
such  admitted  testimony  as  though  the  witness  were  present  and 
had  testified  to  the  same  matter  on  the  witness-stand.  And  if 
the  jury  believe,  from  all  the  evidence  in  the  case,  that  the  said 
witness  was  not  present  on  the  occasion  testified  to  by  the  other 
witnesses,  or  did  not  hear  what  was  said,  or  did  not  know  what 
took  place,  at  the  time  referred  to,  or  is  mistaken  in  his  statement 
of  the  facts,  or  that  for  any  other  reason,  appearing  in  evidence, 
such  admitted  testimony  is  not  reliable,  then  the  jury  have  a  right 
to  so  regard  it,  and  give  their  verdict  as  seems  to  be  warranted 
from  all  the  evidence  in  the  case. 

The  court  farther  instructs  the  jury,  that  they  are  to  give  full 
faith  and  credit  to  the  matters  of  fact  stated  in  the  affidavit  for 
a  continuance,  and  read  to  the  jury,  as  matters  which  the  defendant 
expected  to  prove  by  the  absent  witness,  A.  B.,  precisely  to  the 
same  extent  as  if  the  said  A.  B.  had  been  here  personally  present 
and  examined  as  a  witness,  and  had  sworn  to  the  truth  of  those 
matters,  on  the  witness-stand. 

The  jury  are  further  instructed  that  they  are  to  give  full  credit 
to  the  matters  of  fact  stated  in  defendant's  affidavit  for  a  contin- 
uance, as  to  what  he  expects  to  prove  by  the  said  absent  witness, 
A,  B.,  precisely  to  the  same  extent  as  if  the  witness  had  been 
present  and  examined  in  this  case,  and  had  sworn  precisely  as 
set  forth  in  the  affidavit,  as  read  to  the  jury. 

And  the  jury  should  give  such  statements  in  the  affidavit  as 
to  what  defendant  expects  to  prove,  by  said  witness,  all  the  weight 
to  which  they  wonld  be  entitled  if  such  statements  had  been 
sworn  to  by  the  witness,  on  the  witness-stand,  in  the  presence  of 
the  jury. 


44:  CEEDIBILITY    OF    WITNESSES*. 

That  the  admissions  made  in  this  case,  relating  to  what  de- 
fendant expects  to  prove  by  the  absent  witness,  A.  B.,  are  to  be 
considered  bj  the  jury,  the  same  as  if  the  same  witness  had  been 
examined  as  a  witness  in  the  case,  and  had  testified  on  oath,  before 
you,  that  he  was  present  upon  the  occasion  referred  to  by  the 
other  witnesses,  during  the  whole  of  the  interview,  etc.,  etc. ;  and 
if  such  testimony  has  not  been  contradicted,  or  disproved  by  other 
evidence  in  the  case,  or  by  circumstances  proved  on  the  trial, 
then  the  jury  must  take  such  statement  of  fact  as  true. 

Party  not  Bound  by  Statements  of  His  Own  Witnesses. — The  court 
instructs  the  jury,  that  when  a  party  offers  a  witness  and  places 
him  on  the  witness-stand,  he  thereby  represents  him  in  geueral 
to  be  worthy  of  belief;  but  such  party  is  not  thereby  precluded 
from  proving  the  truth  of  any  particular  fact  by  any  other  com- 
petent testimony,  in  direct  contradiction  to  what  such  witness 
may  have  testified  to;  and  this  is  true  not  only  when  it  appears 
that  the  witness  was  mistaken,  but  also  when  the  evidence  may 
coUalerally  have  the  effect  of  showing  that  he  was  generally 
unworthy  of  belief. 

Terdict  to  be  Determined  by  the  Evidence  Alone. — In  determining  any 
of  the  questions  of  fact  presented  in  this  case,  the  jury  should  be 
governed  solely  by  the  evidence  introduced  before  them.  The 
jury  have  no  right  to  indulge  in  speculations  or  conjectures  not 
supported  by  the  evidence. 

Statements  of  Counsel. — The  jury  are  instructed,  that  it  is  not 
proper  for  counsel,  in  the  argument  of  a  case,  to  state  any  mat- 
ter or  things  bearing  upon  the  questions  of  fact,  and  claimed  to 
be  within  his  own  personal  knowledge,  or  which  niav  have 
been  stated  to  him  by  others,  not  witnesses  in  the  case. 

And  the  juiw  are  further  instructed  to  disregard  all  such 
statements,  if  any  have  been  made,  and  to  make  up  their  verdict 
upon  the  evidence  actually  given  in  this  case,  without  placing 
any  reliance  upon,  or  giving  any  credit  to,  any  statements  of 
counsel  not  supj)orted  by  the  evidence. 

In  determining  any  of  the  questions  of  fact  presented  in  this 
case,  the  jury  should  be  governed  solely  by  the  evidence  intro- 
duced before  them. 


AV  EIGHT    OF    TESTIMONY.  '  45 

Note. — It  has  been  hold  that  it  is  of  doubtful  profossional  propriety  for 
an  attorney  to  become  a  witness  for  his  client  on  the  trial  of  a  cause,  without 
first  entirely  withdrawing  from  any  further  connection  with  the  case  as 
attorney;  and  an  attorney  occupying  the  attitude  of  both  witness  and  attor- 
ney for  his  client  subjects  his  testimony  to  criticism,  if  not  suspicion.  Ross 
el  uL,  V.  Demo88,  45  111.,  447;  Best  on  Ev.,  §  184;  1  Greenlf.  on  Ev.,  §  364,  380. 

The  court  instructs  the  jury,  that  an  attorney  is  a  competent 
witness  for  his  client  on  the  trial  of  a  cause;  and  the  testimony 
of  such  a  witness  should  not  be  disregarded  by  the  jury,  simply 
because  he  is  an  attorney  testifying  in  favor  of  his  own  client. 
In  such  a  case,  the  jury  are  tlie  judges  of  the  weight  and  credit 
to  which  such  testimony  is  entitled.  The  jury  may  consider 
whether  the  statements  of  the  witness  are  apparently  fair  and 
candid,  or  otherwise;  whether  they  are  consistent  with  them- 
selves, and  to  what  extent,  if  any,  they  are  corroborated  or  con- 
tradicted by  other  evidence  in  the  case,  and  give  to  the  testimony 
such  faith  and  credit  as  the  jury  believe  it  entitled  to,  in  view  of 
all  the  facts  and  circumstances  appearing  on  the  trial. 

The  jury  are  instructed,  that  while  the  law  allows  an  attorney 
on  the  trial  of  a  cause  to  testify  as  a  witness  in  favor  of  his  own 
client,  still,  the  weight  and  credit  which  should  be  given  to  such 
testimony  are  questions  exclusively  for  the  jury;  and  if,  from  all 
the  facts  and  circumstances  appearing  on  the  trial,  the  jury  ai-e 
satisfied  that  the  attorney,  A.  B.,  from  feeling  or  prejudice,  or 
from  devotion  to  the  interests  of  his  client,  or  for  any  other 
reason,  has  exaggerated  or  suppressed  the  truth,  or  in  any  man- 
ner colored  his  testimony,  as  to  any  material  matter,  then  the 
jury  have  a  right  to  take  such  fact  into  consideration,  together 
with  all  the  other  evidence  in  the  case,  in  determining  what  de- 
gree of  weight  or  credit  ought  to  be  given  to  his  testimony. 


PAET   III. 

Instructions  in  Civil  Actions. 


^ 


a> 


PART  III. 

IXSTRUCTIOXS  IX  CIYIL  ACTIONS. 


ACCOUNT    STATED. 

Need  not  be  Stated  in  Express  Terms. — The  jury  are  instructed, 
that  in  order  to  constitute  an  account  stated,  it  is  not  necessary 
that  the  admission  of  the  parties,  that  the  balance  struck  is  cor- 
rect, should  be  made  in  express  terms.  If  a  creditor  has  rendered 
his  account  to  the  debtor,  exhibiting  the  items  thereof,  and  the 
amount  due  thereby,  and  the  account  is  not  objected  to  by  the 
debtor,  witliin  a  reasonable  time,  the  acquiescence  of  the  debtor 
pQ    therein  is  to  be  taken  as  an  admission  that  the  account  was  truly 
>Ti     Stated.     Powell  vs.  F.  R.  B.,  65  Mo.,  658;  1  Greenleaf  Ev., 
^      sec.  197;  Freeland  vs.  Heron,  7  Cranch,  147;  Hayes  vs.  Kelley, 
f^       116  Mass.,  300. 


Settlement  Presumed  to  Indude  all  Items. — If  the  jury  believe, 
f  roittf  the  evidence,  that  some  time  about,  etc.,  the  plaintiff  and 
deffetidifnt jmet  tosjether,  and  looked  over  their  accounts  for  the 
pui^sp!  oil  settling  the  same,  and  that  they  then  settled  and 
agr^d -iip5g>n  a  balance  due,  then  the  law  will  presume  that  such 
settlement  embraced  all  the  items  that  eacii  had  against  the  other 
that  were  then  due;  and  in  such  case  it  devolves  upon  the  party 
asserting  the  contrary  to  prove,  by  a  preponderance  of  evidence, 
that  tl}^  item,  etc.,  was  omitted  by  consent  of  the  parties,  or  by 
ac(33ent  and  unintentionally,  or  by  the  fraud  of  the  other  party. 
Strauhher  vs.  Mohler,  80  111.,  21. 

Can  Only  be  Opened  for  Fraud  or  Mistake. — If  the  jury  believe, 
from  the  evidence,  that  some  time  on  or  about,  etc.,  the  parties 
to  this  suit  met  and  looked  over  their  accounts  together,  and 
settled  all  matters  between  them,  and  struck  a  balance  and 


50  INSTRUCTIONS 

ao;i'eed  upon  that  as  the  amount  due  from  one  to  the  other,  then, 
in  the  absence  of  mistake  or  fraud,  neither  party  will  be  aMowed 
to  go  behind  that  settlement  for  the  purpose  of  increasing  or 
diminishing  the  amount  so  agreed  upon. 

The  JU17  are  instructed,  that  when  two  parties  have  a  settle- 
ment and  adjust  all  their  accounts,  and  agree  upon  the  balance 
due.,  neither  party  can  afterwards  open  the  settlement  without 
first  showing,  that  there  was  some  fraud  practiced  on  him,  or  a 
mistake  made  by  both  parties ;  and  the  burden  of  proof  is  upon 
the  party  wishing  to  open  the  settlement,  to  show,  by  a  pre- 
ponderance of  evidence,  that  there  was  a  fraud  practiced 
upon  him,  or  that  the  parties  were  laboring  under  a  mistake  in 
relation  to  some  matter  of  fact  which  entered  into,  or  affected 
the  settlement. 

Aceoimt  Rendered  not  Objected  to,  is  Admitted. — Where  a  party 
sends,  by  mail,  a  statement  of  account  to  another  with  whom  he 
has  dealings,  w^iich  is  received,  but  not  replied  to  within  a  reasona- 
ble time,  the  acquiescence  of  the  party  is  taken  as  an  admission 
that  the  account  is  correctly  stated ;  and  what  is  a  reasonable 
time  in  this  connection,  is  a  question  for  the  jury  to  determine, 
under  all  the  circumstances  of  the  case,  considering  the  nature 
of  the  business,  the  distance  of  the  parties  from  each  other,  and 
the  means  of  communication  between  them.  Bailey  vs.  Bensley, 
87  111.,  556. 

When  two  parties  have  running  accounts  with  each  other,  and  a 
statement  of  the  account  is  made  by  one  party  and  submitted  to 
the  other,  and  the  latter  acquiesces  in  its  correctness,  the  law 
will  regard  it  as  a  stated  account,  by  which  both  parties  will  be 
bound,  unless  it  can  be  shown  that  some  error  or  mistake  has 
been  made,  or  fraud  practiced ;  and  the  burden  of  proving  the 
error,  mistake,  or  fraud,  is  on  the  party  alleging  it. 

When  two  parties  have  a  running  account,  and  one  makes  a 
statement  of  the  account  and  sends  it  to  the  other,  by  mail,  and 
the  latter  keeps  it  an  unreasonable  time,  without  making  any 
objection  to  it,  he  must  be  held  to  have  consented  to  its  being  cor- 
rect, and  he  will  not  afterwards  be  permitted  to  question  its 


IN    CIVIL    ACTIONS.  51 

correctness,  unless  he  can  show  that  there  is  some  error,  mistake, 
or  fraud  in  the  account,  of  which  he  was  ignorant  when  he  so 
consented  to  it. 

May  be  Opened  for  Fraud  or  Mistake. — AUhough  the  jury  may 
believe,  from  the  evidence,  that  the  plaintiff  sent,  and  the  de- 
fendant received,  the  accounts  of  sales  read  in  evidence  on  this 
trial,  and  that  the  defendant  made  no  objection  to  them  at  the 
time  they  were  received,  still,  if  the  jury  further  believe,  from 
the  evidence,  that  said  accounts  of  sales  contained  erroneous 
charges  or  false  accounts,  and  that  the  plaintiff  knowingly  con- 
cealed from  the  defendant  the  fact  of  their  being  erroneous  or 
false,  and  tliat  the  defendant  did  not,  and  could  not,  by  the  exer- 
cise of  reasonable  care,  have  ascertained  or  discovered  such  errors 
or  false  statements,  then  a  failure  on  his  part  to  object  to  said 
accounts,  at  the  time  of  receiving  them,  does  not  in  law  estop 
him  from  afterwards  showing  the  truth  in  reference  to  the 
matters  contained  in  such  statements. 

Contradicting  Receipt. — The  court  instructs  the  jury,  that  a 
receipt  is  but  prima  facie  evidence  of  payment,  and  may  be 
contradicted  by  parol  testimony;  and  if  the  jury  believe,  from 
the  evidence,  that  the  plaintiff  did  the  extra  work  for  which  this 
suit  is  brought,  at  the  request  of  the  defendant,  expressed  or 
implied,  and  that  defendant  has  not  been  paid  for  the  same ;  and 
further,  that  the  receipt  introduced  in  evidence  was  not  in- 
tended to  cover  that  item,  or  that  the  item  was  overlooked,  and 
by  the  mistake  of  the  parties  not  included  in  the  settlement 
when  the  receipt  was  given,  then  the  jury^  should  find  for  the 
plaintiff,  as  to  that  item.     2  Pars,  on  Cont.,  555. 

Receipt  Pi-iraa  Facie  Correct. 4-Tlie  jury  are  instructed,  that  a 
receipt  which  says  on  its  face  that  it  is  a  receipt  in  full,  must  ^ 
be  taken  to  be  in  full  of  all  matters  which  were  claimed,  or 
could  have  been  brought  forward  at  the  time  it  was  given, 
unless  it  appears,  by  a  preponderance  of  the  evidence,  that 
some  item  or  matter  of  claim  was  omitted  by  mistake  of  the 
parties,  or  by  the  fraud  of  the  person  taking  the  receipt.  \ 


53  INSTRUCTIONS 


ALTERING  WRITTEN  INSTRUMENTS. 

Material  Alteration  Renders  lustrnnieut  Void. — The  court  instructs 
the  jury,  that  any  material  alteration  in  the  terms  of  a  promis- 
sory note,  after  it  has  once  been  made  and  delivered,  will  render 
the  note  void  as  against  all  the  parties  to  the  note,  who  did  not 
Icnow  of  and  consent  to  the  alteration  at  the  time  it  was  made, 
or  unless  such  persons  have  in  some  manner  subsequently  ratified 
the  act.  Schnewind  vs.  Hacket,  54  Ind.,  248;  Dickerman  vs. 
Miner ^^Z  la.,  508;  Evans  vs.  Foreman,  60  Mo.,  441);  Bradley 
vs.  Mann,  37  Mich.,  1. 

Alteration  Adopted  by  Maker. — Although  the  jury  may  believe, 
from  the  evidence,  that  since  the  note  was  made  and  delivered, 
it  has  been  altered  by  striking  out  the  words,  etc. — and  inserting 
the  words,  etc., — still,  if  the  jury  further  believe,  from  the  evi- 
dence, that  since  the  said  alteration  was  made,  and  with  full 
knowledge  of  all  the  facts,  the  defendant  has  promised  to  pay  it, 
then  he  will  be  deemed  to  have  adopted  the  alteration,  and  will 
be  bound  to  the  same  extent  as  thouo-h  the  alteration  had  been 
made  before  the  note  was  delivered.  Goodsjpeed  vs.  Cutler,  75 
in.,  534;  Evans  vs.  Foreman,  60  Mo.,  449. 

If  the  jury  believe,  from  the  evidence,  that  since  the  defend- 
ant signed  his  name  to  the  note  in  question,  the  same  has  been 
altered,  without  the  defendant's  knowledge  and  consent,  by  add- 
ing the  words,  etc. — then  the  said  note  is  void  as  to  him,  unless  it 
appears  from  the  evidence  that  the  defendant  has,  in  some  man- 
ner, since  the  alteration  was  made,  ratified  the  same,  as  explained 
in  these  instructions.     Hamilton  vs.  Hooper,  46  la.,  515. 

The  jury  are  instructed,  that  it  is  not  every  alteration  in  a 
written  instrument  wliicli  will  render  it  void  against  the  maker, 
when  done  without  his  consent ;  to  have  that  effect  the  alteration 
must  be  a  material  one,  so  as  to  change  the  terms  of  the  instru- 
ment; and  in  this  case,  although  the  jury  may  believe  from  the 
evidence  that  the  note  in  question,  since  it  was  made  and  deliv- 
ered, and  without  the  consent  of  the  defendant,  has  been  changed 
by  erasing  the  words,  etc. — and  inserting,  etc. — still  this  would 


IN    CIVIL    ACTIONS. 


not  be  a  material  alteration,  and  would  in  no  manner  affect  the 
liability  of  the  defendant  thereon.  Burnham  vs.  Ayer,  35  N. 
IL,  351. 

If  the  jury  believe,  from  the  evidence,  that  the  (paper)  read  in 
evidence  by  tlie  plaintiff,  was  chani^ed  or  altered,  by  inserting 
the  words,  etc. — l)y  tlie  plaintiff,  or  by  any  one  acting  for  him, 
without  the  consent  of  the  defendant,  after  it  was  delivered  to 
the  plaintiff,  then  the  jury  should  entirely  disregard  such  (paper) 
as  evidence  in  the  case — unless  the  jury  further  believe  from  the 
evidence  that  the  defendant  has  in  some  way  ratified  the  altera- 
tion since  it  was  made. 

And  in  determining  whether  such  change  or  alteration  has 
been  made,  the  jury  may  take  into  consideration  the  appearance 
of  the  paper,  the  statement  of  the  w^itnesses,  as  well  as  any  and 
all  other  evidence  of  any  fact  or  circumstance  proved  in  the  case, 
tending  to  throw  any  light  upon  that  question. 

Presnmed  to  be  Made  After  Execution. — The  court  instructs  the 
jury,  that  all  material  interlineations  in  a  deed  are  presumed  to 
have  been  made  after  the  execution  of  the  same,  and  they  ren- 
der the  deed  void,  unless  they  are  explained  by  the  J^arty  claim- 
ing the  benefit  thereof;  and  in  this  case  the  jury  will  consider 
the  deed  purporting  to  be  executed  by  J.  S.  to  C,  and  read  in 
evidence  by  the  defendant,  as  void  and  worthless,  unless  they 
believe  from  the  evidence,  and  from  the  appearance  of  the  deed, 
that  the  interlineations  or  erasures  in  question,  were  made  be- 
fore or  at  the  time  of  the  execution  and  delivery  of  the  deed,  or 
with  the  consent  of  the  maker  thereof.  Montag  vs.  Linn,  23 
111.,  551;  2  Pars,  on  Cont.,  721. 

No  Presumption  of  Law  as  to  When  Alteration  Was  Made. — Where 

an  instrument  offered  in  evidence  has  the  appearance  of  having 
been  altered,  as  when  a  portion  of  it  is  in  a  different  ink,  or 
handwriting,  from  the  other  portions,  the  law  raises  no  presump- 
tion as  to  when  the  change  was  made,  or  by  whom;  but  these  are 
questions  of  fact  to  be  found  by  the  jury;  and  in  determinino- 
these  questions  the  jury  should  look  at  the  instrument  itself,  as 
well  as  to  all  the  circumstances  in  evidence,  for  an  explanation, 


-54  INSTRUCTIONS 

and  thus  determine  whether  the  aUeration  was  before  or  after 
the  execution  of  the  instrument,  and  with  or  without  the  con- 
sent of  the  maker.     MUliken  vs.  Marlin,  GO  111.,  13. 

Note. — Upon  the  question,  whether  the  law  presumes  an  evident  altera- 
tion or  interlineation,  in  a  written  instrument,  to  have  been  made  before  or 
after  execution,  the  authorities  are  in  conflict.  2  Pars,  on  Cont. ,  722,  and 
Note  y. 


APPLICATION    OF  PAYMENTS. 

Debtor  May  Du-ect— If  He  Does  Not,  Creditor  May. — The  jury  are  in- 
structed, that  the  rule  of  law  is,  that  a  debtor,  owing  his  cred- 
itor money  on  distinct  accounts  which  are  all  due,  may  direct 
his  payments  to  be  applied  upon  either  debt,  as  he  pleases.  If 
the  debtor  makes  no  such  appropriation,  then  the  creditor  may 
apply  the  money  as  he  sees  fit ;  and  if  neither  party  make  a  spe- 
cific appropriation  of  the  money,  the  law  will  appropriate  it  as 
the  justice  and  equity  of  the  case  may  require.  2  Parsons  on 
Cont.,  G29;  Bonnell  vs.  Wilder,  67  111.,  327. 

That  where  one  person  is  indebted  to  another  upon  different 
accounts,  or  for  different  debts,  and  the  debtor  makes  a  pay- 
ment, he  has  a  right  to  direct  upon  which  debt  the  payment 
shall  be  applied,  and  if  he  does  so  direct  the  payment,  the  cred- 
itor must  apply  the  payment  as  directed. 

That  a  debtor,  paying  money  to  his  creditor,  has  a  right  to 
direct  how  it  shall  be  applied,  and  the  creditor  has  no  right  to 
disregard  the  directions  of  the  debtor  in  that  respect.  When 
the  debtor  directs  the  application  of  money  at  the  time  of  pay- 
ment, such  aj^plication  cannot  be  changed  by  the  creditor  with- 
out the  consent  of  the  debtor.     Jackson  vs.  Bailey,  12  111.,  159. 

If  the  jury  believe,  from  the  evidence,  that  at  the  time  of 
the  alleged  payments  the  defendant  owed  the  plaintiff  upon  two 
different  accounts,  both  of  which  were  due,  and  that  the  defend- 
ant made  payments  to  the  plaintiff  without  designating  the  debts 
to  which  such  payments  should  be  applied,  then  the  plaintiff  had 
the  right  to  make  the  application  to  such  debt  as  he  saw  fit. 


IN    CI  VI  L    ACTIONS.  5D 


TVlien  Xeither  the  Creditor  nor  tlie  Debtor  Makes  an  .Application  of  the 
Payme:it,  Then  the  Law  Will  Make  It. —  When  a  creditor  holds  two 
debts  against  another,  and  one  is  secured  and  the  other  not,  and 
payments  have  been  made  by  the  debtor,  and  there  is  no  evi- 
dence that  he  directed  their  application,  and  no  evidence  of 
how  they  were  applied,  the  law  will  presume  they  were  credited 
on  the  debt  for  which  there  was  no  security.  Hare  vs.  Stegall, 
60  111.,  380. 

When  a  debtor  owes  a  creditor  several  debts,  and  makes  pay- 
ments, he  has  a  right  to  direct  their  application  to  any  one  or 
more  of  the  debts,  as  he  may  choose;  but  if  he  makes  payments 
and  gives  no  directions,  then  the  creditor  may  apply  them  as  he 
may  choose.  When  such  payments  are  made,  and  neither  party 
makes  the  application,  the  law  will  apply  them  in  the  manner 
most  advantageous  to  the  creditor. 

And  if  the  jury  further  believe,  from  the  evidence,  that  neither 
the  plaintiff  nor  the  defendant  made  any  specific  application  of 
the  payments,  then  the  law  will  apply  the  payments  upon  that 
debt  which  was  first  due  in  point  of  time.  Sj>rague  et  al.  vs. 
HazenwinHe,  53  111.,  419;  Allen  vs.  Brown,  39  la.,  330. 


ATTACHMENT— PLEA  IN  ABATEMENT  TO  AFFIDAVIT. 

About  to  Depart  from  the  State,  Etc. — The  court  instructs  the  jury, 
that  the  burden  of  proof  is  upon  the  plaintiff  to  establish  affirm- 
atively, that  the  defendant  was  al)Out  to  depart  from  the  state, 
with  the  intention  of  removing  his  effects  therefrom,  at  the  date 
of  the  affidavit  in  question  ;  and  that  a  failure  to  establish,  by  a 
preponderance  of  proof,  either  the  intention  to  remove  from  the 
state,  or  his  intention  to  remove  his  property  from  the  state,  will 
entitle  the  defendant  to  a  verdict.  JIawJdns  vs.  AlhrigJd,  TO 
111.,  87. 

The  court  instructs  the  jury,  that  in  order  to  sustain  an  attach- 
ment on  the  ground  that  \\\^.  debtor  is  about  to  depart  from  the 
state,  with  the  intention  of  having  his  effects  removed  from  this 
state,  it  must  appear  from  the  evidence  : 


56  INSTRUCTIONS 

1st.  That  the  debtor  was  about  to  depart  from  the  state  ;  and, 
2d,  that  such  departure  was  with  the  intention  of  having  his 
effects  removed  from  the  state. 

Wliat  is  not  a  Departing  ft'om  the  State. — That  to  autliorize  the 
issuing  of  an  attacliment  against  the  property  of  a  person,  it  is 
not  enough  that  such  person  has  expressed  an  intention  of  re- 
moving from  tlie  state  at  some  future  time,  but  the  jury  must 
believe,  from  the  evidence,  that  tlte  person  was,  at  the  time  of 
the  issuing  of  the  attachment  writ,  then  about  to  depart  from 
the  state.  And  in  this  case,  unless  the  jury  believe,  from  the 
evidence,  that  the  defendant,  at  the  time  the  affidavit  in  question 
was  made,  was  then  about  to  remove  from  the  state,  with  the 
intention  of  having  his  effects  removed  therefrom,  they  should 
find  for  the  defendant. 

The  court  instructs  the  jury,  that  the  simjDle  fact  of  a  debtor 
preparing  to  depart  from  the  state,  with  the  intention  of  remov- 
ing a  portion  of  his  effects  therefrom,  is  not  of  itself  a  sufficient 
ground  to  sustain  an  attachment  ;  provided,  the  jury  believe, 
from  the  evidence,  that  there  would  remain  other  property  of 
the  debtor  in  this  state  sufficient  to  pay  his  debts,  and  that  there 
was  no  intention  to  withhold  the  payment  of  the  debt  upon  which 
this  suit  is  brought. 

About  to  Depart  fi-om  the  State— How  Proved. — The  jury  are  in- 
structed, that  in  order  to  sustain  the  attachment  writ  in  this 
case,  it  is  not  necessary  for  the  plaintiff  to  prove  that  the  defend- 
ant was  about  to  remove  from  the  state,  on  the  werj  day  the 
suit  was  begun  ;  it  is  sufficient,  if  it  appears  from  the  evidence, 
that  the  defendant  was  intending  to  leave  the  state  with  his 
propei-ty,  within  so  short  a  time  that  it  would  prevent  the  plain- 
tiff from  collecting  his  debt  by  an  ordinary  suit  at  law. 

The  jury  are  instructed,  that  if  they  believe,  from  the  evi- 
dence, that  the  defendant,  at  tlie  date  of  the  suing  out  of  the 
writ  of  attachment,  was  about  to  depart  from  this  state,  with  the 
intention  of  having  his  effects  removed  from  this  state,  then  the 
jury  should  find  the  issue,  as  to  the  truth  of  the  affidavit,  in 
favor  of  the  plaintiff. 


IN    CIVIL   ACTIONS.  Oi 

Intent  to  Depart— How  Shown. — The  jury  are  fiirtlier  instructed. 
that  a  party's  intention  to  depart  from  the  state,  and  to  remove 
his  property  therefrom,  can  only  be  shown  by  his  acts  and  state 
ments,  and  a  party  will  be  presumed  to  have  intended  what 
such  acts  and  statements  fairly  and  reasonably  imply. 

And  in  this  case,  if  the  jury  believe,  from  the  evidence,  that 
the  acts  and  statements  of  the  defendant,  at  and  about  the  time 
the  affidavit  in  question  was  made,  were  such  as  fairly  and  reason- 
ably showed  an  intention  on  his  part,  at  that  time,  to  remove  from 
the  state,  with  the  intention  of  having  his  effects  removed  there- 
from, to  the  injury  of  his  creditors,  the  jury  should  find  for  the 
plaintiff. 

Attachment  on  the  (iround  of  Fraud. — That  the  only  issue  for  the 
jury  to  try  is  the  one  formed  upon  the  affidavit  in  attachment  ; 
and  that  is,  whether  or  not,  at  the  time  the  attachment  writ  was 
sued  out,  the  defendant  was  about  to  fraudulently  assign,  con- 
ceal, or  otherwise  dispose  of  his  property,  so  as  to  hinder  or 
delay  his  creditors  in  the  collection  of  their  debts. 

That  the  fraud,  as  alleged,  is  one  of  the  substantial  charges 
made  by  the  plaintiff  in  the  affidavit,  and  it  must  be  proved  by 
a  preponderance  of  the  evidence,  as  the  law  never  presumes 
fraud  without  evidence  tending  to  show  it.  And,  although  the 
jury  may  believe,  from  the  evidence,  that  the  defendant  was 
then  about  to  assign  and  dispose  of  portions  of  his  property, 
still,  unless  the  plaintiff  has  proved,  by  a  preponderance  of  the 
evidence,  the  fraudulent  intent,  as  charged  in  the  affidavit,  the 
jury  should  find  the  issues  for  the  defendant. 

That  the  law  presumes  that  the  business  transactions  of  every 
man  are  done  in  good  faith  and  for  an  honest  purpose,  and  any 
one  who  alleges  that  such  acts  are  done  in  bad  faith,  or  for  a 
dishonest  purpose,  takes  upon  himself  the  burden  of  showing, 
by  specific  acts  and  circumstances  tending  to  prove  fraud,  that 
such  acts  were  done  in  bad  faith.  And  in  this  case,  before  the 
jury  would  be  warranted  in  finding  a  verdict  for  the  plaintiff, 
upon  the  issue  of  the  truth  of  the  affidavit,  they  must  believe,  from 
the  evidence,  that  the  defendant,  at  the  time  the  attachment 
writ  was  sued  out,  was  about  to  fraudulently  assign,  conceal,  or 
otherwise  dispose  of  his  property,  so  as  to  hinder  or  delay  his 
creditors. 


58  INSTRUCTIONS 


COMMON  CARRIERS  OF  PASSENGERS  AND  BAGGAGE 

Coiiunon  Carrier  Defined. — If  the  jury  believe,  from  the  evi- 
dence, that  the  defendant  corporation  was  engaged  in  the  bnsi- 
ness  of  transporting  passengers  and  freight,  for  liire,  upon  a 
railroad  operated  by  said  company,  then  the  law  denominates 
the  defendant  a  common  carrier. 

Injury  Prima  Facie  Evidence  of  Negligence. — If  the  jnry  believe, 
from  the  evidence,  that  the  plaintiff  received  an  injury  while 
riding  on  the  cars  of  the  defendant,  by  reason  of  a  collision  of 
said  cars  with  other  cars,  and  while  he  was  himself  using  all  reason- 
able care  and  cantion  to  avoid  injury,  as  charged  in  the  declara- 
tion, then  these  facts  will  make  a  prima  facie  case  of  negligence 
against  the  defendant;  and  the  burden  of  proof  will  be  on  the 
<lefendant  to  show  that  it,  by  its  agents  and  servants,  did  nse  all 
reasonably  practicable  care  and  precaution  to  prevent  such 
injury.  Sher.  &  Red.  on  Xeg.,  §  268;  Edwd.  on  Bail,  §  711; 
Cooley  on  Torts,  GG3. 

If  the  jury  believe,  from  the  evidence,  that  the  plaintiff  was 
a  passenger  on  board  the  cars  of  the  defendant,  \n  the  month  of 

last,  and  that  those  cars  came  in  collision  with  another 

train  of  cars,  by  and  through  the  negligence  of  the  defendant's 
agents  or  servants,  as  charged  in  the  declaration,  and  that  by 
reason  of  such  negligence  the  plaintiff  was  injured^  and  sustained 
damage,  and  also  that  he  was  himself  using  all  reasonable  care 
and  caution  to  avoid  such  injury,  then  the  jury  should  iind  a 
verdict  for  the  plaintiff,  and  assess  his  damages.  C.  B.  d:  Q. 
B.  B.  vs.  George,  19  111.,  510. 

If  the  jury  believe,  from  the  evidence,  that  the  plaintiff  wns 
a  passenger  on  board  the  defendant's  cars,  and  was  injured  by 
means  of  an  accident  occurring  on  the  railroad  of  the  defendant, 
while  the  plaintiff  was  exercising  all  reasonal)le  care  and  caution 
to  avoid  the  injury,  as  charged  in  the  declaration,  then  the  bur- 
den of  showing  that  such  accident  was  not  the  result  of  the 
negligence  or  lack  of  skill  of  the  defendant,  or  its  agents,  is 
cast  upon  the  defendant.  Snlliva7i\&.  Philadelphia,  etc.,  Rd. 
Co.,  30  Penn.  St.,  234;  Meier  vs.  Penn.  Rd.  Co.,  6-i  Penu.  St., 
225 ;  Boyce  vs.  Cal.  Stage  Co.,  25  Cal.,  460. 


IN    CIVIL    ACTIONS.  50 

If  the  jury  believe,  from  the  evidence,  that  the  plaintiff  was 
injured,  by  the  overturning  of  the  car  in  which  he  was  a  pas- 
senger (or  by  a  collision  of  the  cars,  etc.),  and  was  thereby  injured, 
without  any  fault  upon  his  part,  he  thereby  makes  out  a  prima 
facie  case  of  negligence  against  the  company,  and  places  upon 
it  the  burden  of  proving,  by  a  preponderance  of  evidence,  that 
the  accident  resulted  from  a  cause  which  could  not  have  been 
foreseen  or  prevented  by  the  exercise  of  all  reasonable  care,  vigi- 
lance and  foresight  on  behalf  of  the  company.  P.  C.  ch  II.  L. 
It.  H.  Co.  vs.  Thompson,  56  111.,  138. 

The  court  instructs  the  jury,  that  where  a  railway  car  is 
thrown  fj'ora  the  track,  and  the  passenger  for  hire  is  thei-eby 
injured,  the  presumption  is  that  the  accident  resulted  either 
from  the  fact  that  the  track  was  out  of  order,  or  the  train  badly 
managed,  or  both  combined,  and  the  onus  is  on  the  company  to 
sliow,  by  a  preponderance  of  the  evidence,  that  it  was  not  negli- 
gent in  any  of  these  respects.     P.  P.  <J&  J.  P.  P.  Co.  vs.  Pet/- 

nolds,  88  ill.,  418. 

[See  Part  I.,  Sec.  19.] 

If  the  jury  believe,  from  the  evidence,  that  at  the  time  in 
question  the  plaintiff  was  a  passenger  on  board  of  defendant's 
cars,  and  that  he  received  an  injury,  as  alleged  in  the  declara- 
tion, and  that  he  was  himself,  at  the  time,  exercising  all  reasona- 
ble care  and  caution  to  avoid  the  injury;  and  if  the  jury  further 
believe,  from  the  evidence,  that  the  accident  and  injury  com- 
plained of  hajopened  by  reason  of  the  negligent  and  unskillful 
construction  of  the  track  of  defendant's  railroad,  or  from  the 
want  of  reasonable  care  and  attention  in  keeping  the  track  in 
repair,  or  in  the  management  or  control  of  the  ti'ain  on  which 
tlie  plaintiff  was  a  j)assenger,  then  the  jury  should  find  a  verdict 
for  the  plaintiff. 

Degree  of  Care  Keqnii'ed  of  the  Carrier  of  Passengers. — The  court 
instructs  the  jnry,  that  common  carriers  of  jDersons  are  required 
to  do  all  that  human  care,  vigilance  and  foresight  can  reasonably 
do,  in  view  of  the  character  and  mode  of  conveyance  adopted, 
to  prevent  accidents  to  passengers. 


60  INSTRUCTIONS 

The  utmost  degree  of  care  wliicli  the  human  uiind  is  capable 
of  inventing  is  not  required,  hut  the  highest  degree  of  care  and 
diligence  which  is  reasonably  practicable,  under  the  circum- 
stances of  the  case,  is  required.  Tuller  vs.  Talhot,  23  111.,  357; 
Sher.  &  Eed.,  on  Keg.,  §  266;  Edwd.  on  Bail.,  §  710;  Cooley  on 
Torts,  §  644;  Edvmrds  vs.  Lord,  49  Me.,  279;  Sales  vs.  W. 
Stage  Co.,  4  la.,  547;  Fairchild  vs.  Cal.  Stage  Co.,  13  Cal., 
599. 

The  carriers  of  passengers  by  railroad  are  bound  to  use  all 
reasonably  practicable  precautions,  as  far  as  human  foresight 
will  <sp,  for  the  safety  of  their  passengers;  and  they  arc  answer- 
able to  injured  passengers  for  slight  neglect  of  themselves  or 
agents,  in  respect  to  the  condition  of  the  track,  and  c(^nduct  and 
management  of  their  trains,  if  injury  ensues  therefrom,  and  the 
passengers  themselves  are  without  fault.  G.  c5  C.  if.  Rd.  Co. 
vs.  Yarwood,  17  111.,  509. 

The  jury  are  instructed,  that  the  law  imposes  upon  common 
carriers  of  passengers  the  duty  of  providing  for  their  safe  con- 
veyance, as  far  as  human  care  and  foresight  can  reasonably 
secure  that  result;  and  the  passenger  takes  no  risks,  except  such 
as  are  necessarily  incident  to  the  particular  mode  of  conveyance 
or  travel,  while  the  carrier  is  using  the  utmost  care  and  diligence 
that  is  reasonably  ^practicable. 

The  court  instructs  the  jury,  as  a  matter  of  law,  that  if  there 
is  the  least  failure  by  a  common  carrier  of  passengers  to  exercise 
all  the  care  and  diligence  that  is  reasonably  practicable,  in  keep- 
ing its  vehicles  and  appliances  in  safe  condition,  then  the  duty 
of  the  carrier  is  not  fulfilled,  and  it  is  answerable  for  any  injury 
or  damage  of  which  such  neglect  is  the  proximate  cause;  2^i'<>- 
vided,  the  person  injured  is  himself  using  reasonable  care  and 
caution  to  avoid  such  injury. 

The  jury  are  instructed,  that  it  is  the  duty  of  a  railway  com- 
pany employed  in  transporting  passengers,  to  do  all  that  human 
care,  vigilance  and  foresight  can  reasonably  do,  consistent  with 
the  mode  of  conveyance  and  the  practical  operation  of  the  road, 
in  25i"oviding  safe  coaches,  machinery,  tracks  and  roadway,  for 
the  safety  of  the  passengers,  and  to  keep  the  same  in  good 
repair;  and  if,  from  the  evidence  in  this  case,  the  jury  believe 


IN    CIVIL    ACTIONS.  01 

that  tlic  plaintiff,  while  a  2)as3cnger  on  the  caivs  of  defendant, 
received  an  injury  resulting  from  the  negligence  of  the  defend- 
'  ant,  or  its  servants,  in  either  of  the  above  particulars,  they  will 
iind  for  the  plaintiff;  provided,  the  jury  further  believe,  from 
the  evidence,  that  the  plaintiff's  own  negligence  did  not  con- 
tribute to  such  injury. 

The  court  instructs  the  jury,  that  the  omission  of  any  reasona- 
bly practicable  precaution  which  would  tend  to  insure  the  safety 
of  the  passenger,  or  lessen  the  danger  to  him,  (constitutes  such  a 
neo-lect  in  the  carriers  of  passengers  as  will  make  them  answera- 
ble in  damages  to  a  passenger  injured  by  reason  of  such  neglect, 
if  the  passenger  is  himself  free  from  fault. 

[See  Part  I.,  Sec.  19.] 

Degree  of  Care  Required  of  the  Passenger. — The  court  instructs  the 
jury,  that  a  passenger  on  a  public  conveyance,  in  charge  of  a 
common  carrier,  is  only  required  to  exercise  such  care  and  fore- 
sio-ht  as  is  nsual,  under  similar  circumstances,  with  careful  persons 
possessing  ordinary  intelligence. 

[See  Contributory  Negligence.] 

Juinping  From  the  Cars  Not  Negligence,  When — The  court  instructs 
the  jury,  that  the  fact,  if  proved,  that  the  plaintiff  jumped  from 
the  cars  to  the  ground,  while  said  cars  were  in  motion,  and  thus 
sustained  the  injury  complained  of,  will  not  alone  deprive  him 
of  his  right  to  a  recovery  against  defendant,  if  the  jurj'  further 
believe,  from  the  evidence,  that  an  accident  had  occurred  to  the 
train,  and  that  the  plaintiff  had  reasonable  ground  to  believe, 
and  did  believe,  that  his  life  or  limb  was  in  danger,  and  that  it 
was  necessary  to  leap  from  the  cars  in  order  to  avoid  the  dan- 
ger which  threatened  him.  The  question  is  not  so  much  whether 
there  was,  in  point  of  fact,  any  danger  in  remaining  on  the 
cars,  as  whether  the  plaintiff  reasonably  apprehended  danger, 
and  so  leaped  from  the  cars  to  escape  it.  Ewd.  on  Bail.,  § 
719;  Sherm.  &  Redfle  on  Neg.,  §  282;  Btiell  vs.  JV.  Y.  Cent. 
R.  E.  Co.,  31  N.  Y.,  314 ;  Frink  vs.  Potter,  IT  III,  40G ;  Galena 
&  C.  Ed.  Co.  vs.  Yarioood,  17  111.,  509. 


62  INSTRUCTIONS 

Jumping  From  the  Cars  Negligence,  Wlien — If  tlie  jury  believe,  from 
the  evidence,  that  the  plaintiff  leaped  from  the  cars,  at  the  time 
of  the  injury,  under  circumstances  that  would  not  have  justified 
such  an  act  on  the  part  of  an  ordinarily  careful  and  prudent 
man,  and  that  the  injury  was  caused  by  such  jumping,  and  that 
if  he  had  remained  on  the  car  no  injury  would  have  happened, 
then  the  plaintiif  cannot  recover  in  this  suit. 

Carrier  Not  an  Insurer  Against  Accidents. — That  while  the  defend- 
ant was  bound  to  do  all  that  human  care,  vigilance  and  fore- 
sight could  reasonably  do,  consistent  with  the  practical  operation 
of  the  road,  in  order  to  prevent  injuries  to  its  passengers,  still 
the  company  do  not  insure  the  absolute  safety  of  its  passengers; 
and  in  this  case,  if  the  jury  believe  from  the  evidence  that  the 
injury  complained  of  was  occasioned  by  an  internal  or  hidden 
defect  in  the  *  -^  *  *  which  a  thorough  and  care- 
ful examination  would  not  disclose,  and  which  could  not  bo 
guarded  against  by  the  exercise  of  a  sound  judgment  and  the 
most  vigilant  oversight  and  care,  then  the  defendant  is  not  liable 
for  the  injury  so  occasioned.  P.^  C.  c&  H.  L.  J2.  Ii.  Co.  vs. 
TJiomjtson^  56  IIL,  138. 

If  the  jury  believe,  from  the  evidence,  that  the  injury  to  the 
plaintiif  in  this  suit  happened  to  him  by  mere  accident,  without 
any  fault  on  the  part  of  the  defendant,  or  its  employes,  then  the 
plaintiff  can  not  recover  in  this  action. 

If  the  jury  believe,  from  the  evidence,  that  the  defendant  ex- 
ercised all  reasonably  practicable  care,  diligence  and  skill  in  the 
construction,  preservation  and  repairs  of  its  track,  and  in  man- 
aging and  operating  its  road,  at  the  time  of  the  accident,  and 
that  the  accident  could  not  have  been  prevented  by  the  use  of 
the  utmost  practicable  care,  diligence  and  skill,  then  the  plaintiff 
cannot  recover  in  this  action. 

The  court  instructs  the  jury,  that  while  common  carriers  of 
passengers  are  held  to  the  very  highest  degree  of  care  and  pru- 
dence, which  is  consistent  with  the  practical  operation  of  their 
vehicles  and  the  transaction  of  their  business,  still  they  are  not 
absolute  insurers  of  the  personal  safety  of  their  passengers. 


IN    CIVIL    ACTIONS.  63 

And  ill  this  case,  though  the  jury  may  believe,  from  the  evi- 
dence, that  the  plaintiff  was  injured  while  a  passenger  on  de- 
fendant's cars,  still,  if  the  jury  further  believe,  from  the  evidence, 
that  the  defendant  and  its  servants  were  not  guilty  of  any  neg- 
ligence which  contributed  to  such  injury,  then  the  defendant  is 
not  liable  in  this  action.  G.  cfi  C.  Union  R.  11.  Co.  \s.Yar- 
wood,  15  IlL,  4G8. 

The  Passenger  Takes  all  the  Risks  Necessarily  Incident  to  the  Mode  of 
Conveyance. — The  jury  are  instructed,  that  plaintiff,  as  a  pas- 
senger on  the  defendant's  car,  as  a  matter  of  law,  is  presumed 
to  have  taken  upon  himself  all  the  risks  necessarily  incident  to 
that  mode  of  traveling;  and  if  the  jury  l)elieve  from  the  evidence, 
that  without  the  fault  of  the  defendant,  but  by  inevitable  acci- 
dent, plaintiff  was  injured,  the  jury  should  find  for  the  defendant. 

Liability  for  Baggage. — The  jury  are  instructed,  that  a  common 
carrier  of  passengers,  by  receiving  the  baggage  of  a  traveler 
who  has  engaged  his  passage,  becomes  immediately  responsible 
for  its  safe  delivery  at  the  place  of  destination,  and  nothing  but 
the  act  of  God  or  the  public  enemies  will  excuse  a  non-delivery. 

The  court  instructs  the  jury,  that  the  term  baggage  includes 
a  reasonable  amount  of  money  in  a  trunk,  intended  for  traveling 
expenses,  and  such  articles  of  necessity  and  convenience  as  are 
usually  carried  by  passengers  for  their  personal  use,  instruction, 
amusement  or  protection.  Weeks  vs.  IV.  Y.,  etc.,  7?.  i?.  Co.,  10 
X.  Y.  Sup.  Ct.,  669;  Ilutchings  vs.  Western,  etc.,  R.  R.  Co.,  25 
Ga,,  63;  Dexter  vs.  Syracuse,  etc.,  Rd.  Co.,  42  N.  Y.,  326; 
Parinlee  vs.  Fischer,  22  111.,  212. 

The  court  instructs  the  jury,  that  the  term  baggage  does  not 
extend  to  money,  merchandise,  or  other  valuables  which  are  de- 
signed for  purposes  of  business,  and  not  for  the  traveling  ex- 
penses, personal  use,  comfort,  instruction,  amusement  or  protec- 
tion of  the  passenger.      Woods  vs.  Devine,  13  111.,  746. 

If  a  Trnnk  Contains  Articles  of  Special  Yalne,  Can-ier  Shonld  be  Notified. 

The  court  instructs  the  jury,  that  a  traveler  who  presents  to  a 
carrier  of  passengers,  a  trunk  or  valise,  such  as  is  commonly 
used  for  the  transportation  of^vearing  apparel,  represents  by 


64:  INSTRUCTIONS 

implication,  that  it  contains  only  sncli  articles  as  are  neces- 
sary for  his  comfort  and  convenience  on  the  journey,  and  if 
it,  in  fact,  contains  merchandise,  jewelry,  or  other  valuables, 
and  the  fact  is  not  mentioned,  the  traveler  is  guilt}^  of  such  a 
legal  fraud  as  to  absolve  the  carrier  from  the  extraordinary  lia- 
bility of  insurer. 

The  court  instructs  the  jury,  that  a  carrier  of  passengers  is  not 
bound  to  inquire  as  to  the  contents  of  a  trunk,  delivered  to  it 
as  ordinary  baggage,  such  as  trav^elers  usually  carry,  even  if  tlie 
same  is  of  considerable  weight,  but  the  carrier  may  rely  upon 
the  representation,  arising  by  implication,  that  it  contains 
nothins:  more  than  ba^ffao-e. 

Tlie  court  instructs  the  jury,  that  where  a  person,  under  the 
pretense  of  having  baggage  transported,  places  in  the  hands  of 
the  agents  of  a  railroad  company,  merchandise,  jewelry  and 
other  valuables,  without  notifying  them  of  its  character  and 
value,  he  practices  a  fraud  upon  the  company,  which  will  pre- 
vent his  recovery  in  case  of  loss,  except  it  occurs  through  gross 
negligence  of  the  company.  Edwd.  on  Bail.,  §  529 ;  Mich.  Cent. 
R.  R.  Co.  vs.  Carrow,  73  111.,  3-i8;  Whitmore  vs.  Steajnhoat, 
etc.,  20  Mo.,  513;  Doyle  vs.  Kiser,  6  Ind.,  242. 

Baggage— Liability  of  Carrier  for  Terminates,  T^lien — The  court  in- 
structs the  jury,  that  the  responsibility  of  a  railroad  company,  as 
a  common  carrier,  for  the  baggage  of  a  passenger,  terminates  on 
the  expiration  of  a  reasonable  time  for  the  passenger  to  come  or 
send  for  the  baggage,  after  the  arrival  of  the  train  at  the  pas- 
senger's place  of  destination.  After  such  reasonable  time,  the 
company  may  store  the  baggage  in  its  warehouse,  and  it  will 
then  hold  it  as  a  warehouseman  only.  Chicago  etc.,  It. ,  It.  Co. 
vs.  Boyce,  73,  111.,  510. 


IN    CIVIL    ACTIONS.  65 


COMMON  CARRIERS  OF  GOODS. 

Note.— In  consideriiif-r  tlie  following  instructions,  relating  to  common 
carriers,  it  must  be  borne  in  mind  that  their  liabilities  are  regulated  by 
statute  in  many  of  the  states,  and,  consequently,  they  may  not  be  the  same 
in  diff(>rent  states.  This  is  more  especially  true  as  regards  their  right  to 
limit  their  common  law  liability. 


Who  is  a  Common  Carrier  of  (Joods. — Tlie  jury  are  instructed,  that 
one  who,  for  hire,  carries  passengers  and  their  baggage,  or  bag- 
gage alone,  for  all  persons  choosing  to  employ  hiin,  from,  to  and 
between  railroad  depots  and  hotels,  and  other  pUi(!es  in  a  city, 
is  a  common  carrier  of  goods. 

The  jury  are  instructed,  that  express  companies,  and  railway 
companies,  are  common  carriers,  and  are  liable  as  such  ;  they 
are  insnrers  for  the  safe  delivery  of  the  property  intrusted  to 
them  for  transportation  ;  and  they  will  not  be  excused  for  its 
non-delivery,  except  they  are  prevented  from  delivering  it  by 
an  act  of  God,  or  the  pnblic  enemy.  Cooley  on  Torts,  04(>  ; 
Edwds.  on  Bail.,  §  551.  Morrison  vs.  Davis,  20  Penn.  St., 
171;  Railroad  Co.  vs.  Reeves,  10  AValL,  170. 

Liability  of  Common  Carriers  of  Goods. — The  jury  are  instructed, 
that  a  common  carrier  of  goods,  who  receives  and  undertakes  to 
carry  a  trunk,  for  one  not  a  passenger  with  such  carrier,  is  re- 
sponsible for  the  delivery  of  the  trunk  and  its  contents,  notwith- 
standing the  contehts  consist  of  articles  not  nsually  carried  as 
baggage,  unless  the  owner  has  been  guilty  of  some  fraud  or 
deception  in  relation  to  the  contents  of  said  trunk.  Parmelee 
vs.  Lowitz,  7Jt  111.,  116. 

The  Law  of  the  State,  where  the  Goods  are  Delivered,  Governs. — The 

jury  are  instructed,  that  when  goods  are  delivered  to  a  connnon 
carrier  in  this  state,  and  marked  to  a  particular  pla(;e  or  desti- 
nation, the  carrier  impliedly  agrees  to  carry  and  deliver  the 
goods  at  that  place,  although  it  may  be  beyond  its  own  linos 
of  carrying,  unless  there  is  some  special  contract  relieving  the 

6 


66  INSTRUCTIONS 

carrier  from  such  implied  ol)ligation.  Cooley  on  Torts,  040; 
MihvauJcee,  etc.,  lid.  vs.  Smith,  74  111.,  107;  Bohannan  vs. 
Hammond,  42  Cal.,  227;  McMillan  \&.  Mich.,  etc.,  Rd.  Co., 
10  Mich.,  79. 

The  court  further  instructs  the  jury,  that  the  rule  of  law  in 
this  state  is,  that  when  goods  are  delivered  to  a  common  carrier, 
in  this  state,  marked  to  a  place  not  upon  or  beyond  its  line  of 
road,  with  no  other  direction,  and  without  any  express  contract 
as  to  the  place  of  delivery,  the  law  will  imply  an  undertaking, 
on  the  i3art  t)f  the  carrier,  to  transport  the  goods  to  and  deliver 
them  at  the  j^lace  to  which  they  are  marked.  Milwaukee,  etc., 
Rd.  Co.  vs.  Smith,  74  111.,  197. 

Liable  for  all  Loss,  except  by  Act  of  tlod,  Etc. — The  court  instructs 
the  jury,  that  a  common  carrier  is  lialde  for  all  losses  of  goods 
which  do  not  arise  from  an  act  of  God,  or  the  public  enemies  ; 
while  a  Avarehouseman  is  only  liable  for  sucli  losses  as  might 
have  been  guarded  against  by  the  exercise,  on  his  part,  of  ordi- 
nary care  and  diligence.  St.  L.  A.  &  T.  II.  R.  R.  Co.  vs.  Mont- 
gomery,  39  111.,  335. 

The  jury  are  instructed,  that  where  a  common  carrier  under- 
takes to  transport  goods,  he  will  be  lield  liable  for  their  loss  <u- 
destruction,  in  the  absence  of  a  sj^ecial  contract  in  that  behalf, 
unless  the  loss  or  destruction  was  caused  by  the  act  of  God,  or 
the  public  enemy. 

Wliat  is  Meant  by  Act  of  (iod. — By  the  term  act  of  God,  is  meant 
something  superhuman  —  something  beyond  the  power  of  man 
to  foresee  or  guard  against.  It  means  inevitable  accident  — 
something  that  happens  without  the  intervention  of  man,  A 
loss  by  lire  is  not  a  loss  by  act  of  God.  Mer.  Dlsp.  Co.  vs. 
Smith,  76  111.,  542. 

By  the  term  act  of  God,  is  meant  those  events  and  accidents 
which  proceed  from  natural  clauses,  and  cannot  be  anticipated 
and  guarded  against,  or  resisted;  such  as  unexampled  freshets, 
violent  storms,  lightning  and  frosts.  For  losses  occurring  by 
any  of  these  means,  a  common  carrier  is  not  liable ;  provided. 
he  has  not  been  guilty  of  any  want  of  ordinary  and  reasonable 
care  to  guard  against  sucli  loss. 


IN    CIVIL    ACTIONS.  67 

What  is  Not  an  Act  of  (Jo(l. — If  the  jury  belicvo,  from  tlie  evi- 
deiux',  that  the  injury  coiiiijhuued  of  couhl  liave  been  prevented 
lyy  -X-  *  *^  ^yy.  ]yy  g,jy  (,tli(3i-  incuus  known  and  reco^ui7:ed  as 
suitable  and  proper  for  the  purpose,  then  the  injury  ^vas  not 
produced  by  an  act  of  God,  within  the  meaning  of  the  law. 

Inovitalile  Accident,  Wliat. — If  the  jury  believe,  from  the  evi- 
dence, that  the  injury  complained  of  was  the  result  of  inevitable 
accident,  then  the  jury  should  find  for  the  defendant.  And  the 
jury  are  instructed,  that  the  import  and  meaning  of  the  words 
"  inevitable  accident "  is  this  :  Where  one  is  pursuing  a  lawful 
avocation  in  a  lawful  manner,  and  something  occurs  which  no 
ordinary  skill  or  precaution  could  foresee  or  prevent,  and  as  a 
consequence  the  accident  takes  place,  this  is  called  inevitalde 
accident. 

Carrier  must  use  Reasonable  Care  to  Avoid  Injury  by  Act  of  Ood.— 

The  jury  are  instructed,  that  a  common  carrier  is  bound  to  use 
reasonaljle  care  and  diligence  to  prevent  loss  or  injury  to  goods 
intrusted  to  it,  by  what  are  termed  acts  of  God  ;  that  is,  such 
care  and  diligence  as  ordinarily  prudent  men  usually  exercise 
toward  their  own  property,  under  like  circumstances  ;  and  if  the 
carrier  do  not  use  such  care  and  diligence,  and  loss  or  damage 
results  therefrom,  he  will  be  liable  therefor. 

"Wliether,  in  this  case,  such  care  and  diligence  were  or  were 
not  used  by  the  defendant,  and  whether  any  loss  resulted  there- 
from, are  questions  to  be  determined  by  the  jury,  in  view  of  all 
the  facts  and  circumstances  proved  on  the  trial.  III.  Cent.  lid. 
Co.  vs.  McClellan,  54  111.,  58. 

Written  Receipt  Not  Required. — The  jury  are  instructed,  that  to 
charge  a  common  carrier  with  the  receipt  of  goods,  it  is  not 
necessary  that  any  written  receipt  should  be  given;  provided, 
the  jury  believe  from  the  evidence,  that  the  property  in  (juestion 
had  a(;tually  come  into  the  possession  of  the  carrier,  to  be  trans- 
ported by  it,  and  that  it  was  afterwards  lost  or  destroyed,  as 
alleo-ed  in  the  declaration. 


6S  INSTKL'CTIOXS 

When  the  Liability  of  the  Carrier  Commences. — The  law  is,  that  as 
soon  as  property  is  received  into  the  exclusive  possession  of  the 
common  carrier,  with  its  knowledge  and  consent,  for  the  pur- 
pose of  being  shipped,  then  the  liability  of  a  common  carrier 
commences,  no  matter  whether  it  is  received  into  a  car,  depot 
or  wai-ehouse.  Edwds.  on  Bail.,  §  528;  Coylc  vs.  Western^  etc., 
Corp.,  47  Barb.,  152;  Barren  vs.  Eldridge,  100  Mass.,  455; 
Michigan,  etc.,  Rd.  Co.  vs.  Sohurtz,  7  Mich.,  515. 

The  jury  are  instructed,  that  the  liability  of  a  common  car- 
rier, for  the  safe  delivery  of  property  which  has  come  into  its 
possession,  is  the  same,  whether  it  was  received  directly  from 
the  owner  or  from  another  carrier,  to  whom  it  had  been  oriffi- 
nally  delivered.      Gulliver  vs.  Adams  Erja.  Co.,  38  111.,  503. 

Liability  Continues,  How  Long-. — The  court  instructs  the  jury,  that 
common  carriers  of  goods  must  deliver  the  goods  shipped  b}^ 
them  to  the  owner  or  consignee  at  the  point  of  destination,  or 
store  the  goods,  subject  to  the  order  of  the  consignee;  and  they 
cannot  relieve  themselves  from  their  liabilities  as  common  car- 
riers until  the  goods  are  delivered  to  the  owner  or  consignee,  or 
till  they  are  placed  in  a  warehouse  for  safe  keeping;  and  there 
nmst  be  some  open,  distinct  act  of  delivery,  to  a  warehouse  in 
order  to  change  the  liability  fi-om  that  of  a  common  carrier  to 
that  of  a  warehouseman,  and  the  proof  of  this  change  rests  on 
the  carrier.  The  liability  of  a  common  carrier  will  continue 
until  a  different  liability  attaches,  on  the  part  of  some  one. 
C  <&  li.  I.  Rd.  Co.  vs.  Warren,  16  111.,  502;  Francis  vs.  D.  <i; 
8.  City  Rd.  Co.,  25  la.,  60. 

Note. — The  dutj'  of  raih'oad  companies  and  other  common  carriers,  in 
respect  to  notifying  the  consignee  of  the  arrival  of  the  goods,  or  of  deliv- 
ering to  tliem  personally,  will  be  governed,  to  some  extent,  by  custom  and 
iisage,  and  by  the  former  course  of  dealing  between  the  parties;  and  pei-- 
haps,  to  some  extent,  by  the  circumstances  of  the  case.  Redfield  on  Car- 
riers, sees.  104-100;  McMillc.n  vs.  Mich.  Southern  Rd.  Co.,  Id  Mich.,  79; 
Buckley  vs.  G.  W.  Rd.  Co.,  18  Mich.,  121. 

If  Goods  are  not  Delivered  to  Consignee,  they  must  be  Stored. — If  tiie 
jury  believe,  from  the  evidence,  that  the  goods  of  the  plaintiif 
were  carried  by  the  defendant  to  then*  destination,  and  not  then 
and  there  delivered  to  the  plaintiff,  or  to  some  one  for  him,  by 


IN    CIVIL    ACTIONS.  69 

reason  of  there  being  no  one  there  to  receive  them,  or  for  any 
other  cause  not  the  fault  of  the  })lalnti(f,  then  it  was  the  duty  of 
the  defendant  to  store  the  goods  in  an  ordinarily  safe  warehouse. 

The  jury  are  instructed,  that  it  is  the  duty  of  a  carrier  of 
goods,  when  the  goods  liave  arrived  at  the  place  of  destination, 
to  unload  and  place  them  in  a  convenient  place  for  delivery, 
and  if  the  consignee  is  there  ready  to  receive  them,  to  deliver 
them  to  him;  but  if  he  is  not  there,  the  carrier  must  safely 
store  them  under  the  charge  of  competent  and  careful  servants, 
ready  to  be  delivered  when  called  for  by  those  entitled  to  receive 
them;  and  if  the  carrier  fails  to  do  this,  and  the  goods  are 
thereby  lost  or  injured,  the  carrier  will  be  liable  to  the  owner 
for  such  loss  or  injury.  Calui  vs.  Mich.  Cent.  Rd.  Co.,  71 
IIL,  90. 

If  the  jury  believe,  from  the  evidence,  that  the  defendant 
received  the  goods  of  the  plaintiff,  to  be  transported  by  it,  as 
charged  in  the  declaration,  then  the  responsibility  of  the  de- 
fendant as  a  common  carrier  lasted  until  the  plaintiff's  goods 
reached  their  destination  and  were  delivered  to  the  plaintiff,  (;r 
his  authorized  agent,  or  were,  by  the  defendant,  stored  in  an 
ordinarily  safe  ^varehouse  of  its  own  or  some  one  else. 

Railroad  Companies  are  not  Bound  to  Deliver  to  Consignee  PersoajiUy. — 

The  court  instructs  the  jury,  that  railroad  comj^anies  are  not 
bound  to  deliver  goods  carried  by  them  to  the  consignee  per- 
sonally. When  the  goods  have  reached  their  destination,  and 
the  consignee  is  not  present  to  receive  them,  then  the  carrier 
may  store  them  in  a  suitable  warehouse,  and  when  the  goods  are 
thus  stored,  the  duty  and  liability  of  the  company  as  a  common 
carrier  is  terminated,  and  that  of  the  warehouseman  begins. 
Cooley  on  Torts,  6-42 ;  Chicago  dt  A.  Ed.  Co.  vs.  Scott,  42  111., 
122. 

Duty  and  Liability  of  Express  Companies. — That  an  express  com- 
pany, as  a  common  carrier,  is  not  only  i-cquired  to  transport  the 
goods  to  the  place  of  destination,  but  the  further  duty  is  en- 
joined upon  it  to  deliver  the  goods  to  the  consignee,  at  his  resi- 
dence, or  place  of  business,  if,  with  the  exercise  of  reasonable 
care  and  efforts  in  that  behalf,  such  residence  or  place  of  busi- 
ness can  be  found. 


70  INSTRUCTIONS 

The  court  further  instructs  the  jury,  that  wliere  goods  trans- 
ported by  an  express  company  are  by  it  tendered  to  the  con- 
signee, and  he  fails  to  receive  and  pay  for  them,  it  is  the  duty  of 
the  express  company  to  so  notify  the  consignor,  and  when  this 
is  done,  the  company  is  relieved  of  its  responsibility  as  a  common 
carrier,  and  holds  the  goods  as  a  warehouseman,  subject  to  the 
order  of  the  consignor,  and  not  before. 

The  court  further  instructs  the  jury,  as  a  matter  of  law,  that 
an  express  company  can  discharge  itself  of  responsibility,  as  a 
common  carrier,  in  no  other  way  than  by  an  actual  delivery  of 
the  goods  to  the  proper  person,  at  his  residence  or  place  of  busi- 
ness, when,  with  reasonable  efforts,  these  can  be  found,  except 
by  proving  that  the  company  has  been  excused  from  so  doing, 
or  prevented,  by  an  act  of  God,  or  the  public  enemy.  Am. 
Merchants  U.  Ex.  Co.  vs.  Wolf,  79  111.,  430. 

That  it  is  the  duty  of  an  exjiress  company,  upon  receiving  a 
package  of  money  to  be  forwarded,  to  safely  carry  and  deliver 
it  to  the  consignee,  and  the  only  way  it  can  relieve  itself  from 
this  responsibility  is  by  showing  performance,  or  its  prevention 
by  the  act  of  God,  or  a  public  enemy.  And  in  this  case,  if 
if  the  jury  believe,  from  the  evidence,  that  the  defendant,  at 
the  time  in  question,  was  a  common  carrier,  and  as  such  received 
the  money  in  question,  to  be  carried  and  delivered  to  the  pUiintiff 
at  Iv.,  and  that  the  defendant  delivered  said  money  to  one  E.,  on 
a  writing  purporting  to  be  an  order  of  the  plaintiff,  and  that 
said  order  was  a  forgery,  then  such  deli^'ery  will  not  excuse  the 
defendant,  and  the  plaintiff  is  entitled  to  recover  the  amount  of 
said  money.     Am.  M.  U.  Ex.  Co.  vs.  Milk,  73  III,  22-1. 

Care  Requii'ed  of  Warehousemen. — The  jury  are  further  instructed, 
that  when  the  carrier  assumes  the  duty  of  wai-ehousemen,  he  is 
bound  to  use  ordinary  care  and  diligence  in  the  preservation  of  the 
property.  The  building  in  which  the  goods  are  stored  must  be 
a  reasonably  safe  one,  and  under  the  charge  of  careful  and  com- 
petent servants. 

And  if  the  jury  further  believe,  from  the  evidence,  that  after 
the  goods  arrived  at  their  destination,  and  after  a  reasonable  time 
for  the  consignee  to  call  for  and  receive  the  same,  the  defendant 


IN    CIVIL    ACTIONS.  71 

retained  possession  of  tliem,  such  i)()Sscssion  would  1)C  in  the 
capacity  of  a  warehousekeeperof  goods  for  hire,  and  as  siuh  ware- 
houseinan,tho  defendant  was  bound  to  use  all  ordinary  diligence 
and  caution  in  the  care  of  the  same.  Edwd.  on  l>ail.,  §  33G; 
Chic.  E.  L  cO  P., Ed.  Co.  vs.  Fairdough,  52  111.,  lo(>. 

That  the  ordinary  diligence  or  care  which  a  warehouseman  i3 
bound  to  use,  is  that  degree  of  care  and  attention  which,  under 
the  same  circumstances,  a  man  of  ordinary  prudence  and  dis- 
cretion would  ordinarily  use  in  reference  to  the  particular  goods, 
if  they  were  his  own  property.  Mote  vs.  C.  (&  JV.  W.  Ed.  Co.,  27 
la.,  22;  Fra?ic{s  vs.  D.  dh  S.  C.  Ed.  Co.,  25  la.,  GO. 

Wliat  is  Ordinary  Diligonce  and  Care. — That  ordinary  diligence  1.3 
such  diligence  as  men  of  common  prudence  usually  exercise 
about  their  own  affairs;  and  ordinary  care  is  such  care  as  an 
ordinarily  prudent  person  usually  takes  of  his  own  goods.  C.  & 
A.  Ed.  Co.  vs.  Scott,  42  111.,  132. 

Must  CaiTy  Within  a  Reasonable  Time. — The  jury  are  instructed, 
that  when  a  railroad  company  contracts  to  forward  and  deliver 
goods  at  any  particular  point,  it  is  bound  to  forward  and  deliver 
the  goods  at  that  point  within  a  reasonable  time,  and  it  will  not 
be  released  from  its  liability  by  delivery  to  another  connecting 
road;  but  it  will  still  be  liable  for  any  unreasonable  delay, 
although  the  same  occurs  on  account  of  the  crowded  condition 
of  the  connecting  road,  or  for  any  other  cause  attributable  to  such 
road.  Penn.  Ed.  Co.  vs.  Be?i3,  68  Peim.  St.,  272;  Kiyig  vs. 
Macon,  etc.,  Ed.  Co.,  GO  Barb.,  IGO;  Toledo,  W.  dj  W.  E.  E.  Co. 
vs.  Lockhart,  71  111.,  G27. 

First  Canier  Liable  for  Loss. — The  jury  are  instructed,  that  if 
there  is  no  special  contract  to  the  contrary,  and  goods  are  lost 
by  one  carrier  in  a  line  composed  of  several  cari-iers,  the  first  to 
whom  the  goods  are  delivered,  and  who  agreed  to  transport 
them  to  their  destination,  will  be  liable  to  the  owner  in  case  the 
goods  are  lost,  and  he  will  not  be  recpiired  to  sue  the  carrier  who 
actually  lost  the  same.  Chicago  &  N.  W.  E.  TF.  Co.  vs.  R, 
Line  Packet  Co.,  70  111.,  217. 


12  INSTEUCTIONS 

Receipt  Prima  Facie  Evidence  of  Goods  in  Good  Order. — That  the 
receipt  introduced  in  evidence  is  prima  facie  jiroof  that  the 
goods  therein  mentioned  were  in  good  order  at  the  time  tliey 
were  received  by  the  defendant,  and  so  far  as  regards  that  ques- 
tion, the  burden  of  proof  is  on  the  defen<Uint  to  show,  by  a  pre- 
ponderance of  evidence,  that  the  goods  were  in  a  (himaged  con- 
dition at  the  time  they  were  received  hy  the  defendant,  or  else 
tliat  the  injury  occurred  from  a  cause  for  which  the  defendant 
is  not  liable,  as  explained  in  these  instructions;  provided,  the 
jury  belie\-e,  from  the  evidence,  that  the  goods  were  damaged 
^vhcn  delivered  to  the  plaintiff,  as  charged  in  the  declaration. 
Montgomery,  etc.,  Rd.  Co.  vs.  Moore,  51  Ala.,  394. 

The  bill  of  lading,  introduced  in  evidence  in  this  case,  is 
prima  facie  evidence  that  the  box  of  goods  was  received  by  the 
defendants,  and  was  at  that  time  in  good  order;  and  if  the 
defendants  claim  that  it  was  not  so  in  good  oi-der,  it  is  incum- 
bent on  them  to  show  this,  and  that  they  were  deceived  or 
defrauded  when  the  bill  of  lading  was  signed  ;  and  unless  the 
jury  believe,  from  the  evidence,  that  the  defendants  were  so 
deceived  or  defrauded,  they  will  find  a  verdict  for  the  plaintiff 
for  the  amount  of  his  loss,  as  shown  by  the  evidence;  provided, 
that  the  jury  find,  from  the  evidence,  that  the  plaintiff  demanded 
said  goods  before  the  commencement  of  this  suit,  and  that  tlie 
goods  were  not  delivered  on  demand,  as  charged  in  the  plain- 
tiff's declaration;  and  further,  that  said  loss  did  not  occur  from 
{causes  excepted  in  the  receipt).  G.  W.  R.  R.  Co.  vs.  McDon- 
ald, IS  111.,  172. 

The  jury  are  instructed  that  the  bill  of  lading  in  this  case 
shows,  prima  facie,  that  the  goods  in  question  w-ere  in  good 
order  and  condition  when  they  were  received  by  the  railroad 
company;  and  if  the  jury  believe,  from  the  evidence,  that  the 
goods  were  not  in  good  order  and  condition  —  natural  wear  and 
tear  and  ordinary  deterioration  excepted  —  when  delivered  to 
the  plaintiff,  then,  to  avoid  liability  for  injury  to  the  goods,  de- 
fendants must  show,  by  a  preponderance  of  evidence,  that  the 
goods  were  not  as  described  in  the  bill  of  lading  at  tlie  time 
they  were  delivered,  or  that  they  were  injured  by  some  fault  oi- 


IN    CIVIL    ACTIONS. 


7S 


nci^ligeuce  of  the  plaintiff,  or  by  {some  cause  within  the  exemjj- 
tion  clause  of  the  receipt). 

[See  Pari  /.,  Sec.  8.] 

Bill  of  Lading  Implies  What,  Contract. — The  jury  arc  instructed, 
that  the  l)ill  of  lading,  offered  in  evidence,  recites  that  the  goods 
were  in  good  order  and  condition  when  received  by  the  defend- 
ant, and  by  said  bill  of  lading  the  defendant  contracted  to  de- 
liver said  goods  in  like  good  order  and  condition  at  P.;  and  if 
the  jury  believe,  from  the  evidence,  that  the  goods  were  not 
delivered  in  as  good  order  and  condition  as  when  received  by 
defendant  —  ordinary  wear  and  tear  and  ordinary  deterioration 
excepted  —  and  that  the  plaintiff  was  injured  and  has  sustained 
damage  thereby,  then  tlie  plaintiff  is  entitled  to  recover,  unless 
the  jury  believe,  from  the  evidence,  that  the  damage  or  injury 
to  such  goods  resulted  from  some  fault  or  negligence  of  the 
plaintiff,  or  from,  etc.     Bissell  vs.  Price,  16  111.,  408. 

Bill  of  Lading  Not  Conclusive  of  Condition  of  the  Goods. — The  court 
instructs  the  jury,  that  a  bill  of  lading,  while  _2>/'M^i«yac^(?  true, 
may  be  explained  by  other  evidence;  and  if  the  jury  believe, 
from  the  evidence  in  this  case,  that  the  goods  in  question  were 
wet  or  otherwise  injured,  or  in  bad  condition,  before  they  came 
into  defendant's  hands,  and  that  they  were,  externally,  in  good 
condition  when  defendant  received  them,  and  that  the  person 
receiving  the  goods  could  not,  without  opening  them,  have 
ascertained  their  actual  condition,  then,  the  fact  of  receipting 
for  them  as  in  good  order  and  condition,  v/ill  not  preclude  the 
defendant  from  showing  their  true  condition  in  this  suit.  Bis- 
sell  vs.  Price,  10  111.,  408  ;  Carson  vs.  Harris,  4  G.  Gr.,  516  ; 
Porter  vs.  C.  c6  J^.  W.  Rd.  Co.,  20  la.,  73. 

Carrier  Does  Not  Insure  Condition  of  the  Goods. — The  court  instructs 
the  jury,  that  while  common  carriers  ai-e  insurers  for  the  deliv- 
ery of  the  goods  received  by  them,  they  are  not  insurers  that  the 
goods  will  reach  their  destination  in  the  same  condition  in  which 
they  were  shipped.  They  are  not  liable  for  loss  arising  from 
ordinaiy  wear  and  tear,  or  ordinary  deterioration  in  quantity  or 


74  INSTRUCTIONS 

quality  daring  the  journey,  nor  for  loss  arising  from  the  fault  or 
negligence  of  the  shipper. 

Carriers  can  only  Restrict  their  Common  Law  Liabilities  by  Special 
Contract. — The  law  is,  that  a  eoninion  carrier  is  bound  to  receive 
and  carry  goods  offered  to  him  for  transportation,  if  in  proper 
condition  for  shipping,  subject  to  all  the  incidents  of  his  busi- 
ness as  a  common  (carrier,  and  there  can  be  no  presumption  that 
the  shipper  intended  to  abandon  any  of  his  legal  rights;  and 
the  burden  of  proving  a  contract,  by  which  his  common  law 
liability,  as  explained  in  these  instructions,  has  been  restricted, 
is  upon  the  carrier.  Western  T.  Co.  vs.  N'ewhall^  24  111.,  466 ; 
McCoy  vs.  The  K.  &  D.  M.  R.  Co.,  44  la.,  424. 

Leg-al  Duty  of  Carriers  Imposed  by  Law. — That  the  right  conferred 
upon  railroad  corporations,  in  their  charters,  to  carry  passengers 
and  property  for  compensation,  is  coupled  with  the  duty  that 
they  shall  receive  and  carry  passengers  find  freight  on  their 
roads  as  they  may  be  offered,  under  the  liabilities  and  respon- 
sibilities which  the  law  imposes  upon  common  carriers,  as  ex- 
plained in  their  instructions;  and  these  liabilities  cannot  be 
avoided  except  by  a  special  agreement  to  that  effect.  P.  &  It. 
I.  Rij.  Co.  vs.  Coal  Valley.,  etc.,  Co.,  *o%  111.,  4S0;  Wallace  vs. 
Mattheios,  39  Ga.,  617;  Thayer  vs.  St.  Louis,  etc.,  Ed.  Co.,  22 
Ind.,  20. 

Exemption  Clause  in  Receipt  Not  Binding. — That  where  goods  are 
received  by  a  common  carrier,  and  a  receipt  or  a  bill  of  lading 
is  given,  containing  a  clause  exempting  the  carrier  from  certain 
liabilities  therein  mentioned,  such  receipt  is  not  binding  upon 
the  shipper,  unless  it  appears,  by  a  preponderance  of  the  evidence, 
that  he  knew  of  and  assented  to  the  exemption ;  and  whether  he 
did  so  assent  is  a  question  of  fact  for  the  jury.  Field  vs.  C.  c& 
R.  I.  Rd.  Co.,  71  111.,  458. 

Exemption  Clause  Binding  if  Agreed  to. — The  court  instructs  the 
jury,  that  when  a  common  carrier,  receiving  goods  for  trans- 
portation, gives  a  receipt  for  the  goods,  containing  provisions 
limiting  the  common  law  liability  of  the  carrier,  other  than  those 


IN    CIVIL    ACTIONS, 


Y5 


arising  fi-oiii  its  own  fault  or  negligence,  and  the  shipper  accepts 
the  receipt  witli  a  full  knowledge  of  its  terms,  and  intends  to 
assent  to  such  restrictions,  it  becomes  his  contract  as  fully  as  if 
he  had  signed  it.  But  the  simple  acceptan(;e  of  such  a  receipt 
does  not  conclusively  hind  the  sliippcr;  in  order  to  bind  him,  it 
must  appear,  from  the  evidence,  that  he  had  knowledge  or  notice 
of  the  terms  of  the  receipt  and  assented  to  them.  Adams  Ex. 
vs.  Ilayjies,  Co.  42  111.,  89. 

Shipper  will  be  Presumed  to    A^-ee  to  Exemption  Clause,   Wlien.— 

The  court  instructs  the  jury,  that  when  a  shipper  delivers  goods 
to  a  common  carrier  to  be  transported  by  the  carrier,  and  takes 
a  receipt  for  the  goods  in  the  nature  of  a  bill  of  lading,  specify- 
ing in  the  body  of  it,  so  as  to  form  a  part  of  the  receipt,  the 
terms  upon  which  they  are  to  be  carried  and  delivered,  the 
shipper  will  be  bound  by  the  terms  of  the  receipt,  unless  it  ap- 
pears, by  the  evidence,  that  some  fraud  or  imposition  was  prac- 
ticed upon  the  shipper  to  induce  him  to  take  such  a  receipt. 
Edwd.  on  Bail.,  §  561 ;  Long  vs.  iT.  T.  Cent.  Bd.  Co.,  50  N.  Y., 
76;    Grace  vs.  Adams,  100  Mass.,  505. 

The  jury  are  further  instructed,  that  the  receipt  introduced 
in  evidence  in  this  case  contains  a  stipulation  exempting  the 
defendant  from  all  loss  or  injury  to  the  goods  arising  from,  etc.; 
and  if  the  jury  believe,  from  the  evidence,  that  the  plaintiff  ac- 
cepted the  receipt  without  objection,  then  he  is  bound  by  its 
terms.  The  law  presumes  that  he  read  it,  or  was  otherwise  in- 
formed of  its  contents,  and  if  he  accepted  it  without  objection, 
that  he  assented  to  the  conditions  prescribed  in  it — unless  the 
jury  further  believe,  from  the  evidence,  that  some  fraud  or  con- 
<;ealment,  or  improper  practice,  was  used  to  induce  him  to 
take  it. 

Burden  on  the  Carrier  to  Show  Loss  Within  Exemption. — Where 
goods  are  received  by  a  common  carrier,  to  be  carried  under  the 
usual  bill  of  lading,  containing  a  clause  exempting  the  carrier 
from  certain  liabilities,  other  than  those  arising  from  his  own 
fault  or  negligence,  which  are  assented  to  by  the  shipper,  and 
the  goods  are  lost  or  injured,  it  is  incumbent  upon  the  carrier  to 


70  INSTRUCTIONS 

show  that  the  loss  resulted  from  one  of  the  causes  excepted  in 
the  receipt,  as  explained  in  these  instructions,  or  from  an  act  of 
God,  or  the  public  enemies.  Western  T.  Co.  vs.  Newhall,  24 
111.,  40G;  Mitchell  vs.  The  U.  S.  Ex.  Co.,  -40  la.,  214. 

Liability  not  Limited  by  Notice. — The  jury  are  instructed,  that  a 
connnon  carrier  cannot  discharge  itself  from  the  duty  to  safely 
carry  and  deliver  goods  intrusted  to  it  for  transportation,  by 
notice,  public  or  private,  of  the  terms  on  which  it  receives  or 
carries  goods  or  property;  to  make  such  notice  effectud,  the 
shipper  must  assent  to  its  terms.  Edwd.  on  Bailments,  §  560; 
N.  J.  Steam  Man.  Co.  vs.  Merchants'  Baoik,  6  How.  U.  S., 
344;  McMillan  vs.  3fichigan,  etc.,  Bd.  Co.,  16  Mich.,  79; 
Blossom  vs.  Dodd,  43  N.  Y.,  204 ;  Verner  vs.  Sweitzer,  32  Penn. 
St.,  208. 

The  conrt  instructs  the  jury,  that  the  couimon  law  liability  of 
a  common  carrier,  as  explained  in  these  instructions,  cannot  be 
restricted  l)y  notice,  even  when  such  notice  is  brought  home  to 
the  knowledge  of  the  shipper.  In  order  to  give  a  notice  this 
effect,  it  must  appear,  by  a  preponderance  of  the  evidence,  that 
the  shipper  expressly  assented  to  the  terms  of  the  notice,  and 
whether  he  did  so  assent,  is  a  cjuestion  of  fact  for  the  jury. 

The  jury  are  instructed,  that  by  the  terms  of  the  receipt  in- 
troduced in  evidence  in  this  case,  the  defendant  is  not  liable  for 
any  loss  or  damage  to  the  goods  in  question,  arising  from  or 
caused  (l)y  fire)  while  in  the  possession  of  defendants  as  common 
carriers,  unless  such  {fire),  or  loss,  or  damage  was  occasioned  by 
some  want  of  ordinary  prudence  or  reasonable  care,  on  the  part 
of  the  defendant;  and  although  the  jury  may  believe,  from  the 
evidence,  that  said  goods  were  destroyed  (by  fire)  while  in  the 
possession  of  the  defendant,  still  the  defendant  is  not  liable 
therefor,  nnless  the  jury  further  believe,  from  the  evidence,  that 
the  said  defendant,  or  its  servants,  by  the  exercise  of  ordinary 
^  diligence  or  reasonable  care,  might  have  avoided  such  loss. 

Must  Exercise  Reasonable  Care  to  Prevent  Loss  Within  Exemption.— 

Although  the  jury  nuiy  believe,  from  the  evidence,  that  the 
goods  in  question  w^ere  destroyed  {hy  fire),  still,  if  the  jury  fur- 
ther believe,  from  the  evidence,  that  by  the  exercise  of  ordinary 


IN    CIVIL    ACTIONS 


jiriKleiK'C  on  the  part  of  tlie  defeiidaut,  or  its  servants,  bucIi 
destruction  miirht  have  been  prevented,  then  the  defendant  is 
liable  in  this  suit. 

Sliipper  Bound  by  Receipt,  When — Tlie  coui-t  instructs  the  jury, 
that  if  a  shipper  take  a  receipt  for  his  goods  from  a  connnou 
carrier,  which  contains  conditions  limiting  the  liability  of  the 
carrier,  with  a  full  understandmg  of  such  conditions,  and  in- 
tending to  assent  to  them,  it  becomes  his  contract  as  full  as  if 
he  had  signed  it,  and  he  will  be  bound  by  the  conditions;  but  if 
a  shipper  accept  such  a  receipt,  because  he  has  no  alternative 
but  to  receive  it,  and  not  intending  to  assent  to  the  conditions 
limiting  the  liability  of  the  carrier,  then  he  will  not  be  bound  by 
such  conditions.      The  Anchor  Line  vs.  Dater,  68  111.,  369. 

Shipper  not  Bonml  hy  Notice  Printed  on  Receipt. — The  court  instructs 
the  jury,  that  the  printed  notice  printed  upon  the  {J>ac?£  of  the) 
i-eceipt,  of  the  terms  and  conditions  upon  which  the  defendant 
received  and  carried  the  goods  in  question,  is  not  binding  upon 
the  plaintiff,  unless  the  jury  find,  from  the  evidence,  that  his 
attention  was  particularly  called  to  that  notice  when  he  took  the 
receipt,  and  tliat  he  expressly  assented  to  the  terms  and  condi- 
tions therein  contained.  The  fact  alone  that  the  plaintiff  ac- 
cepted the  receipt  is  no  evidence  that  he  assented  to  the  terms 
of  said  notice. 

Cannot  Resti'ict  Liability  Arising  from  its  Own  Negligence. — The  law, 
on  grounds  of  pul)lic  policy,  will  not  permit  a  common  carrier 
of  passengers  or  freiglit,  to  contract  against  liability  for  its  own 
actual  neo-lio'ence,  or  that  of  its  servants  and  emploves.  U.  31 
S.  Co.  vs.  Ind.^  etc.,  ltd.  Co.,  1  Disney  (Ohio),  480;  Erie.,  etc., 
lid.  Co.xs.  Wilcox,  84-  111.,  239;  Lid.,  etc.,  Rd.  Co.  vs.  Allen, 
?.l  Ind.,  394;  Penn.  Rd.  Co.  vs.  3IcClosJ>:ey,m  Penn.  St.,  526; 
School  JDis.,  etc.,  vs.  Boston,  etc.,  Rd.  Co.,  102  Mass.,  552. 

The  court  instructs  the  jury,  that  although  they  may  believe, 
from  the  evidence,  that  there  was  a  special  contract  between  tiie 
plaintiff  and  the  defendant,  that  defendant  should  not  be  liable 
for  any  loss  or  injury  to  said  goods,  wliicii  might  occur  by  reason 
or     "      *     *     still,  such  a  contract  would  not  relieve  the  de- 


78  I N  S  T  R  r  C  T I O  N  S 

fendant  from  loss  resulting  from  negligence,  or  the  want  <>f 
ordinary  care  and  prudence  on  the  part  of  the  defendant,  or  its 
servants. 

And  in  this  case,  if  the  jury  believe,  from  the  evidence,  that 
the  defendant  was  guilty  of  negligence,  or  any  want  of  ordinary 
care  and  caution,  and  that  the  loss  complained  of  resulted  there- 
from, without  any  fault  upon  the  part  of  the  plaintiff,  then  lie 
has  a  right  to  recover  in  this  case.  III.  O.  Rd.  Co.  vs.  Sniyser 
et  al,  38  111.,  354. 


COMMON  CARRIERS  OF  LIVE  STOCK. 

Duties  and  Liabilities  of. —  It  is  the  duty  of  a  railroad  com- 
pany which  undertakes  to  carry  live  stock  for  hire,  to  exer- 
cise all  reasonable  care,  skill  and  judgment  to  provide  cars  of 
sufficient  strength  to  prevent  the  animals  from  breaking  through 
the  same;  and  it  will  be  responsible  for  a  loss  if  it  occurs 
through  its  failure  to  exercise  such  care,  skill,  and  judgment, 
although  the  animals  be  unruly  and  vicious.  Smith  vs.  J^ew 
Haven,  etc.,  Rd.  Co.,  12  Allen,  531 ;  Great  W.  Rd.  Co.  vs.  Jlaio- 
kins,  18  Mich.,  427;  McDaniel  vs.  C.  c§  N.  W.  Rd.  Co.,  24 
la.,  412. 

What  Care  Required  of  Caniers  of  Live  Stock. — The  jury  are 
instructed,  that  the  carrier  of  live  stock  must  exercise  all  rea- 
sonable care,  skill  and  judgment  to  provide  safe  and  properly 
constructed  cars,  in  which  to  carry  the  stock — to  provide  stations 
or  stopping  places  along  the  road,  where  cattle  may  be  fed;  and 
if  it  fails  to  exercise  such  care,  skill  and  judgment,  and  loss  or 
damage  results  therefrom,  the  carrier  wull  be  liable  to  the  owner 
for  the  damage  thus  sustained,  if  he  is  himself  free  from  fault 
or  negligence  contributing  to  such  injury. 

The  court  instructs  the  jury,  as  a  matter  of  law,  that  a  com- 
mon carrier  for  hire  is  bound  to  exercise  all  the  care  and  dili- 
gence which  prudent  and  cautious  men,  in  the  same  business, 
usually  employ,  for  the  safety  and  preservation  of  the  property 
confided  to  its  care;  and,  in  this  case,  if  the  jury  believe,  from 


IN    CIVIL    ACTIONS.  79 

the  evidence,  that  the  defendant  did  not  use  all  such  reasonable 
care  and  prudence  to  provide  a  safe  and  suitable  car  for  plain- 
tiff's stock,  or  in  the  running  and  management  of  the  train  in 
question,  and  that,  by  reason  of  such  want  of  care  and  diligence, 
phiintiff's  stock  was  injured,  as  charged  in  the  declaration,  tlien 
the  defendant  is  lia'ole  for  the  resulting  damage  to  the  anujunt 
proved  by  the  evidence. 

Injiu'ies  Without  Carrier's  Fault. — If  the  jury  believe,  from  the 
evidence,  that  the  defendant  furnished  a  suitable  car  in  whicli 
to  ship  the  stock  in  question,  and  used  all  due  care  in  managing 
and  traiisporting  the  same,  and  that  the  injury  complained  of 
was  caused  by  the  peculiar  character  of  the  animals  themselves, 
such  as  bad  temper,  unusual  restiveness  or  viciousness,  then  the 
defendant  is  not  liable  in  this  case.  8m.ith  vs.  N.  IL,  etc.,  Rd. 
Co.,  12  Allen,  531. 

The  jury  are  instructed,  that  although  they  may  believe,  from 
the  evidence,  that  the  car  in  which  plaintiff's  stock  was  shipped 
was  defective,  in  not  having,  etc.;  still,  if  the  jury  further  be- 
lieve, from  the  evidence,  that  such  defect  in  no  manner  con- 
tributed to  the  injury  complained  of,  then  the  defendant  sliould 
not  be  held  liable  in  this  case  by  reason  of  such  defect  in  said 
car. 

If  the  jury  believe,  from  the  evidence,  that  the  car  in  which 
the  stock  was  shipped  was  then  in  a  safe  and  suitable  condition, 
and  was  managed  in  a  careful  and  prudent  manner,  and  that 
the  injuries  complained  of  were  not  caused  by  the  carelessness 
or  bad  management  of  those  having  charge  of  the  train,  then 
the  jury  should  find  the  defendant  not  guilty. 

Care  Required  of  Carriers  of  Hog-s. — That  Mdien  hogs  are  shipped 
in  railroad  cars  at  a  season  of  the  year  when,  for  their  pnjper 
care  and  treatment,  it  is  necessary  to  apply  water  to  prevent 
them  from  being  suffocated  or  overheated,  then  it  is  the  duty  of 
the  railroad  company  to  have  proper  stations  and  appliances  for 
furnishing  such  water,  and  to  so  run  and  manage  its  trains  as 
to  afford  reasonable  opportunities  to  the  persons  in  charge  of 
the  stock  to  apply  such  water,  and  if  it  does  not- exercise  such 


80  INSTKUCTIONS 

care,  skill  and  judgment,  and  loss  or  damage  to  the  stock  results 
therefrom,  the  carrier  will  be  liable  to  the  owner  for  the  damage 
thus  sustained ;  provided,  he  is  himself  free  from  fault  or  neg- 
ligence contributing  to  such  injury.  Edwd.  on  Bail.,  §  GS2] 
Toledo,  etc.,  Rd.  Co.  vs.  Thompson,  71  111.,  434. 

Degree  of  Cai'e  Required  to  Avoid  Delay. — The  jury  are  instructed, 
that  the  carrier  of  live  stock  for  pay  must  exercise  I'easonalde 
diligence  in  the  business,  and  complete  the  journey  within  a 
reasonable  time,  and  if  he  does  not  do  so,  and  the  stock  is  in- 
jured by  the  delay,  the  carrier  will  be  liable  to  the  owner  for  all 
damage  caused  by  such  delay.  Edwd.  on  Bail.,  §  680;  Ger- 
man vs  C.  <:€'  iV^  W.,  la.,  137;  Tucker  vs.  Pacific  Rd.  Co.,  50 
Mo.,  385;  Slsson  vs.  Cleveland,  14  Mich.,  489. 

If  the  jury  believe,  from  the  evidence,  that  some  time,  on  or 
about,  etc.,  the  plaintiff  shipped  on  board  the  defendant's  cars 
the  {live  stock)  to  be  transported  from  O.  to  C,  and  that  there 
was  no  special  contract  between  the  parties  in  relation  to  the 
time  of  starting  the  train  or  of  its  arrival  at  C,  then  it  was  the 
duty  of  the  defendant  to  start  the  train  and  to  make  the  journey 
within  a  reasonal;)le  time  after  so  receiving  the  stock;  and  if  the 
jury  further  l)elleve,  from  the  evidence,  that  the  cars  containing 
said  stock  did  not  arrive  at  C.  within  a  reasonable  time  after  the 
stock  was  placed  on  the  cars,  and  that,  by  reason  of  such  delay, 
the  animals  were  unnecessarily  reduced  in  weight,  or  otherwise 
depreciated  in  value,  and  the  plaintiff  thereby  damaged,  then 
the  defendant  is  liable  for  such  damage  in  this  suit. 

Stilt  by  Carrier  for  Freight  and  Charges. — If  the  jury  believe,  from 
the  evidence,  that  at  the  time  in  question  the  plaintiff  was  a 
common  carrier,  and  in  the  ordinary  course  of  business  received 
the  goods  in  question,  in  the  j^roper  line  of  transit,  and  paid 
freight  and  charges  thereon  to  preceding  carriers  or  warehouse- 
men, then  the  plaintiff  is  entitled  to  reasonable  charges  for  the 
transportation  of  said  goods,  besides  the  amount  so  paid  to 
others,  although  the  jury  may  believe,  from  the  evidence,  that 
said  goods  were  damaged  before  they  reached  the  plaintiff,  while 
in  the  hands  of  some  prior  carrier;  provided  the  jury  further 


IN    CIVIL    ACTIONS.  81 

believe,  froin  the  evidence,  tliat  said  goods  were  not  injured 
after  coming  to  the  hands  of  phiintiff.  Bissell  vs.  I*rice,  10 
IlL,  40 S. 

Carrier's  Lien. — The  jury  are  instructed,  that  a  common  car- 
rier has  no  lien  upon,  or  right  to  detain,  goods  or  merchandise 
shipped  from  one  place,  or  at  one  time,  for  charges  on  other 
goods  shipped  at  another  phice,  or  another  time,  unless  there  is 
some  contract  to  that  effect  expressed  or  implied  Ijetween  the 
parties  (except  on  proof  of  general  usage,  etc).  Edwd.  on  Bail., 
§615. 

If  the  jury  believe,  from  the  evidence,  that  the  plaintiff,  be- 
fore the  commencement  of  this  suit  by  himself  or  his  agent, 
demanded  the  property  in  question  of  the  defendant,  and  that 
the  defendant  then  refused  to  deliver  the  property,  but  did  not 
claim,  at  the  time  of  refusal  to  retain  it  for  the  charges  thereon, 
then  he  is  uom^  estopped  from  setting  up  that  claim  as  a  reason 
for  not  delivering  the  property  on  demand. 
[Sec  Demand  and  Refusal.] 


CONTRACTS. 

Capacity  to  Contract. — The  jury  are  instructed,  that  the  la\y 
presumes  that  all  adult  persons  have  sufficient  intellectual 
capacity  to  transact  business  with  ordinary  intelligence,  and  the 
party  alleging  incaj)acity  must  overcome  this  presumption  by  a 
preponderance  of  evidence.  2  Pars,  on  Coiit.,  572;  MoCarty 
vs.  Kearnan,  86  111.,  291. 

The  court  instructs  the  jury,  that  the  legal  presumption  is, 
that  all  persons  of  mature  age  are  of  sound  mind  and  memory, 
and  this  presumption  continues  until  the  contrary  is  shown  by  a 
preponderance  of  evidence. 

The  court  instructs  the  jury,  as  a  matter  of  law,  that  when 
the  mind  is  so  deranged  that  a  person  cannot  comprehend  and 
understand  the  effect  and  consequences  of  an  act,  or  the  busi- 
ness in  which  he  may  be  engaged,  then  the  law  will  relieve  him 
from  the  consequences  of  his  acts;  but  so  long  as  he  is  possessed 
of  the  requisite  mental  faculties  to  transact  rationally  the  ordi- 


82  INSTKUCTIONS 

nary  affairs  of  life,  lie  will  not  be  released  from  the  responsi- 
l)ility  that  rests  npon  the  ordinary  citizen.  Harris  vs.  Watnsley, 
41  la.,  071;  -i  Pars,  on  Cont.,  572;  Tltcoiiib  vs.  Vantyle,  84 
III,  y72. 

That  to  establish  such  a  want  of  mental  capacity  as  will  avoid 
a  contract  on  that  gronnd,  there  mnst  be  such  a  degree  of  men- 
tal derangement  or  imbecility  of  mind  as  will  induce  the  belief 
that  the  party  was  incapable  of  comprehending  the  effect  and 
consecpiences  of  his  act  in  entering  into  the  contract. 

That  if  a  person  is  capable  of  reasoning  correctly  on  the 
ordinary  affairs  of  life,  or  is  capable  of  comprehending  and 
understanding  the  consequences  which  usually  accompany  ordi- 
nary acts,  he  will  be  held  to  be  of  sound  mind,  and  be  bound 
by  his  contracts.     Baldwin  vs.  Dunton,  40  111.,  188. 

The  court  further  instructs  the  jury,  that  mere  mental  weak- 
7iess  of  one  of  the  parties  to  a  contract,  is  not  sufficient  to  avoid 
the  contract,  or  authorize  the  party  to  rescind  it,  if  such  weak- 
ness does  not  amount  to  an  inability  to  comprehend  and  under- 
stand the  terms  and  effect  of  the  contract,  unless  it  is  accompanied 
by  evidence  of  imposition  or  undue  influence. 

Dnuilienness. — The  court  instructs  the  jury,  as  a  matter  of  law, 
that  to  render  a  transaction  voidable  on  account  of  the  drunken- 
ness alone  of  a  party  to  it,  it  should  appear,  from  the  evidence, 
that  he  was  so  drunk  as  to  have  drowned  his  reason,  memory 
and  judgment,  and  impaired  his  mental  faculties  to  an  extent 
that  Avould  render  him  wholly  idiotic  for  the  time  being.  Bates 
vs.  Ba.ll,  72  111.,  108. 

If  the  jury  l)elieve,  from  the  evidence,  that  the  plaintiff  pro- 
cured intoxicating  li(uiors  and  influenced  the  defendant  to  drink 
of  the  same  until  he  became  so  intoxicated  that  he  lost  the 
rational  use  of  his  mental  faculties,  and  so  that  he  did  not 
understand  what  he  was  doing,  and,  while  he  was  in  this  condi- 
tion, procured  his  signature  to  the  contract  in  question,  then 
such  contract  would  be  void  as  against  the  said  defendant,  and 
he  is  not  bound  thereby.     Mitchell  vs.  Kingman^  5  Pick.,  431; 

1  Pars,  on  Cont.,  383. 

[See  Insanity, 


IN    CIVIL    ACTIONS.  83 

Frsiiid  .inil  Circumvention  in  I'rocariug'  Execution  of  Contract. — If  the 

jury  believe,  from  the  evidence,  that  the  defendant  was  induced 
by  the  plaintiffs,  or  cither  of  them,  to  sign  the  written  contract 
offered  in  evidence  by  the  fraud  and  circumvention  of  said 
plaintiffs,  or  either  of  them,  then  such  written  contract  is  void  as 
against  the  defendant,  and  he  is  only  bound  by  tlie  actual  con- 
tract made  between  the  parties,  as  shown  by  other  evidence  in 
the  case. 

If  the  jury  believe,  from  the  evidence,  that  at  the  time  the 
contract  was  made,  the  defendant  was  unable  to  read  writing 

readily  and  understandingly,  and  requested  the  said to 

read  the  said  contract  to  him  (or  the  said proposed  to 

read  the  same  to  him),  and  did  so  read  it  to  the  defendant;  and 
if  the  jury  further  believe,  from  the  evidence,  that  the  said 

,  when  reading  the  said  instrument,  misread  the  same  in 

any  material  part,  and  thus  induced  the  defendant  to  sign  the 
said  contract,  when  he  would  not  otherwise  have  done  so,  this 
would  constitute  fraud  and  circumvention  within  the  meaning 
of  the  law,  and  such  contract  is  not  binding,  on  said  defendant, 
and  the  same  is  wholW  void  as  to  him. 

Signature  Procured  by  Fraud— Burden  of  Proof. — If  the  jury  believe, 
from  the  evidence,  that  the  defendant  signed  the  {lease)  in  ques- 
tion, then  the  covenants  on  his  part  therein  contained  will  be 
binding  upon  the  defendant,  unless  the  jury  further  believe, 
from  the  evidence,  that  he  was  induced  to  sign  the  same  by  some 
fraud  practiced  on  him  by  the  plaintiff;  and  such  fraud  must 
not  be  presumed  by  the  jury  without  proof,  it  must  be  proved 
by  a  preponderance  of  evidence. 

The  jury  are  further  instructed,  that  although  they  may  be- 
lieve, from  the  evidence,  that  the  defendant  signed  the  lease  in 
question  without  reading  the  same  over,  still  he  cannot  release 
himself  from  the  performance  of  the  covenants  therein  con- 
tained, unless  the  jury  further  believe,  from  the  evidence,  that 
the  plaintiff  fraudulently  induced  the  defendant  to  sign  said 
lease  without  reading  it  or  knowing  its  contents. 

TVliat  Constitutes  a  Contract— Assent  of  Parties. — The  court  instructs 
the  jury,  that  before  there  can  be  a  contract  between  two  par- 


84:  INSTRUCTIONS 

ties,  the  ininds  of  the  two  parties  mast  come  together  and  agi-ee 
nj)oii  all  the  terms  and  conditions  of  the  contract:  or,  as  is  some- 
times said,  the  minds  of  the  contracting  parties  must  meet.  1 
Par.  on  Cont.,  475;  Baker  vs.  Johnson  Co.,  37  la.,  18G;  Steel 
vs.  Ililler,  40  la.,  402;  Davidson  vs.  Porter,  57  IlL,  300. 

The  jury  are  instructed,  that  if  one  person  makes  a  proposi- 
tion to  another,  and  the  latter,  without  any  formal  acceptance 
of  the  proposition,  enters  upon  the  performance  of  it,  and  pro- 
ceeds to  avail  himself  of  its  benefits,  he  will  l)e  as  fully  bound 
as  if  he  had  in  terms  accepted  the  offer.  Miller  vs.  Manis,  57 
111.,  126. 

Wliata  Conti-act  of  Sale. — The  jury  a'-e  instructed,  that  to  con- 
stitute a  contract  of  sale  of  personal  property,  for  future  deliv- 
ery, the  minds  of  the  two  parties  must  meet  and  agree  on  the 
article  to  be  sold,  the  price  to  be  paid,  the  terms  of  the  pay- 
ment, and  the  time,  place  and  terms  of  delivery  of  the  property 
sold,  so  that  each  mind  assents  to  all  the  requirements  of  the 
other ;  if  any  one  of  these  matters  is  left  open  for  further  con- 
sideration and  further  settlement,  there  is  no  complete  bargain. 

Consideration  Necessary  to  aTalid  Contract. — The  court  instructs  the 
jury,  that  any  promise,  for  which  there  is  no  consideration,  can 
not  be  enforced  at  law. 

Wliat  is  Consideration, — The  court  instructs  the  jury,  that  what- 
ever works  a  benelit  to  the  party  promising,  or  whatever  works 
any  loss  or  disadvantage  to  the  person  to  whom  the  promise  is 
made,  although  without  any  benefit  to  the  promiser,  is  a  sufficient 
consideration  to  support  a  contract  or  agreement.  1  Pars,  on 
Cont.,  430;  1  Pars,  on  K  &  B.,  175. 

That  one  promise  is  a  good  consideration  for  another  promise, 
and  if  the  jury  l)elieve,  from  the  evidence,  that  at  the  time  of 
the  alleged  contra(;t  the  plaintiff  promised  and  agreed  with  the 
defendant  that  he  would,  etc.,  and  that  in  consideration  thereof 
the  defendant  then  agreed  with  the  plaintiff  that  he  would,  etc., 
then  one  of  these  promises  is  a  good  consideration  for  the  other, 
and  the  several  agreements  are  binding  upon  the  respective 
parties. 


IN    CIVIL    ACTIONS.  85 

New  Promise  to  Perform  Legal  Obligation. — The  court  instructs  the 
jury,  that  if  one  party  promise  another  to  do  what  he  is  ali'cady 
under  legal  obligation  to  perform,  then  such  a  promise  is  not 
a  good  consideration  for  a  promise  by  the  other  party,  and  a 
promise  by  him  upon  such  a  consideration  is  not  binding,  and 
camiot  be  enforced  against  him  by  suit.  1  Pars,  on  Coiit.,  437; 
Collins  vs.  Godefrey,  1  B.  &  Ad.,  950. 

Promise  to  Receive  Part  Pajanent  in  Full  Satisfiiction. — If  the  jury 
believe,  from  the  evidence,  that  at  the  time  of  the  alleged 
agreement  interposed  as  a  defense  in  this  case,  the  defend- 
ant was  indebted  to  the  plaintiff  in  the  sum  of  ($100),  and  that 
that  indebtedness  was  then  due,  then,  although  the  jury  may 
further  believe,  from  the  evidence,  that  the  plaintiff  promised 
the  defendant  that  if  he  would  pay  ($50)  of  such  indebtedness 
within  {ten  days)  from  that  date,  he  would  take  that  as  payment 
in  full,  and  forgive  him  the  balance  of  the  debt;  and  further, 
that  relying  upon  that  promise,  the  defendant  did,  within  ten 
days,  23ay  the  said  sum  of  ($50),  still  such  jDromise  on  the  part 
of  the  plaintiff  was  without  consideration,  and  void  as  to  him 
and  he  is  not  bound  thereby.     2  Pars,  on  Cont.,  618. 

Partial  Payment  by  Strangers. — Though  the  jury  may  believe, 
from  the  evidence,  that  at  the  time  of  the  alleo-ed  ag-reement  for 
a  settlement  of  the  matter  in  controversy  in  this  case,  the  de- 
fendant was  indebted  to  the  plaintiff  in  the  sum  of  about  ($100), 
and  that  such  indebtedness  was  then  due,  still,  if  the  jury  fur- 
ther believe,  from  the  evidence,  that  at  that  time  the  plaintiff 
promised  the  defendant  that  if  he  would  raise  ($50)  and  pay  that 
sum  on  the  indebtedness  within  {ten  days)  from  that  date,  that 
he  would  take  that  amount  as  payment  in  full,  and  forgive  him 
the  balance  of  the  debt;  and  further,  that  relying  upon  that 
promise,  and  in  consideration  thereof  {the  father  of  defendant)^ 
paid  the  plaintiff  the  said  sum  of  ($50),  then  such  payment  by 
the  father  forms  a  good  consideration  for  the  promise  of  the 
plaintiff,  and  he  is  bound  thereb3\  2  Pars,  on  Cont.,  619; 
Boyd  vs.  Ilitchcock,  20  John.,  76 ;  Kellogg  vs.  Richards,  14 
Wend.,  116. 


86  INSTRUCTIONS 

Construction  of  Contracts. — The  court  instructs  the  jury,  that 
when  parties  are  making  a  bargain  or  entering  into  a  contract, 
they  will  be  held  to  mean  and  intend  just  what  the  language 
used  commonly  imports,  as  ordinarily  used  in  reference  to  the 
subject  matter  of  the  contract,  and  not  what  either  party  may 
have  secretly  intended  or  meant. 

Still,  if  the  jury  believe,  from  the  evidence,  in  this  case,  that 
at  the  time  of  the  making  of  the  alleged  contract,  in  this  case, 
the  plaintiff  said  *  *  *  and  if  the  jury  further  believe, 
from  the  evidence,  that  the  defendant  understood  plaintiff  to 
sav  *  *  *  and  that,  acting  on  that  understanding,  defend- 
ant replied  *  *  *  this  language  would  not  constitute  a 
binding  bargain  or  contract  between  the  parties.  I^ichols  vs. 
Ilercer,  44  111.,  250;  2  Pars,  on  Coiit.,  494. 

Contract  Modified. — If  the  jury  believe,  from  the  evidence,  that 
after  the  making  of  the  written  contract,  the  parties,  by  parol 
agreement  modiiied  the  same  as  to  the  time  of  performance, 
and  as  to  the  quality  of,  etc.,  to  be  delivered,  and  that  the 
plaintiff  performed  the  said  contract  as  so  modified,  by  deliver- 
nig,  etc.,  then  both  parties  would  be  bound  by  the  contract  as 
thus  modified.  Leo  Grand  Quarry  vs.  Eeicharcl,  40  la.,  161; 
1  Greenl.  Ev.,  §  303,  304;  Cook  vs.   Marpluj,  70  111.,  96. 

The  jury  are  instructed,  that  although  a  sealed  contract,  while 
it  remains  in  force  and  is  to  be  performed,  cannot  be  shown  to 
have  been  changed  by  parol  agreement,  still,  a  contract  under 
seal  may  be  changed  by  a  subse(pient  verbal  agreement  for  the 
performance  of  additional  woi'k,  or  the  furnishing  of  additional 
materials,  or  for  the  payment  of  an  additional  sum  of  money,  and 
if  the  work  is  subsequently  performed,  or  the  material  furnished 
in  accordance  with  the  terms  of  the  contract,  as  thus  changed, 
the  change  will  be  binding  upon  both  the  parties. 

Rij?lit  to  Rescind  Contract  for  Frand. — The  law  is,  that  if  a  party 
is  defrauded  in  a  contract  by  the  false  and  fraudulent  represent- 
ations of  the  other  party,  he  may  elect  whether  he  will  stand 
by  the  contract  or  rescind  it;  he  may  stand  by  it  and  recover 
damages,  if  any,  resulting  from  the  fraud,  or  he  may  rescind 


IN    CIVIL    ACTIONS.  87 

tlie  contract  and  recover  back  what  he  has  paid.     Parker  vs. 
Marquis,  6-i  Mo.,  38. 

Tlie  jury  are  instructed,  that  in  order  that  representations 
may  be  regarded  as  fraudulent,  so  as  to  be  a  ground  for  rescind- 
ing a  contract,  they  must  Ije  both  false  and  fraudulently  made. 
If  they  are  made  with  an  honest  belief  of  their  truth,  at  the 
time,  they  are  not  fraudulent;  but  if  made  recklessly,  and  without 
any  knowledge  or  information  on  .  the  subject  calculated  to  in- 
duce such  belief,  aud  they  prove  to  be  untrue,  then  they  are 
fraudulent  within  the  meaning  of  the  law.  Parnilee  vs. 
Acloljyh,  28  Ohio  St.,  lU. 

Ri-^ht  to  Rescind  for  Mistake  of  Fact. — The  court  instructs  the 
jury,  that  wliere  a  conti-act  is  made  under  an  honest  mistake,  as 
to  a  material  fact  affecting  the  right  of  the  parties,  it  may  be 
rescinded  by  the  party  sought  to  be  charged,  upon  discovering 
such  mistake;  provided,  that  he  is  guilty  of  no  want  of  diligence 
in  not  ascertaining  what  the  real  facts  were.  Byers  vs.  Chajnn, 
28  Ohio  St.,  300 

Notice  of  Intention  to  Rescind  mnst  be  Given,  Etc. — The  jury  are 
instructed,  that  when  a  person  intends  to  rescind  a  contract  on 
the  ground  of  fraud,  or  on  the  ground  of  mistake,  he  must  give 
notice  of  his  intention  promptly,  and  as  soon  as  it  can  reasonably 
be  done  after  discovering  the  facts  which  entitle  him  to  rescind, 
or  else  he  will  be  held  to  have  ratified  the  contract. 

And  in  this  case,  whether  the  defendant  gave  the  j^laintiff 
notice  of  his  intention  to  rescind  the  contract  in  question,  and 
whether  such  notice  was  given  as  soon  as  it  could  i-easonably  be 
done  after  the  alleged  discovery  of  the  fact,  relied  upon  as  giv- 
ing the  right  to  rescind,  are  questions  of  fact  to  be  determined 
by  the  jury  from  the  evidence  in  the  case.  Parmlee  vs. 
Adolph,  28  Ohio  St.,  10;  Byers  vs.  Chapin,  28  Ohio  St.,  300. 

Rescinding-  by  Mutual  Consent. — The  jury  are  instructed,  that  all 
contracts  may  be  rescinded  by  the  consent  of  all  the  contracttino- 
parties,  and  this  consent  need  not  always  be  expressed  in  words. 
If  either  party  without  right  claims  to  rescind  the  contract,  the 
other  party  need  not  object;  and  if  he  permit  it  to  be  rescinded, 
it  will  be  done  by  mutual  consent.     2  Par.  on  Cont.,  678. 


88  INSTRUCTIONS 

Rescinding-  for  Non-performance. — The  jury  are  instructed,  that 
when  one  party  fails  or  refuses  to  perform  his  part  of  the  con- 
tract, with  an  intention  to  abandon  it,  or  disables  himself  from 
performing  it,  the  other  party  may  treat  the  contract  as  re- 
scinded.    2  Par.  on  Cont.,  GTS. 

The  court  instructs  the  jury,  as  a  matter  of  law,  that  a  con- 
tract cannot  be  rescinded  by  one  of  the  parties  alone,  for  non- 
performance by  the  other,  iiidess  both  can  be  restored  to  the 
condition  in  which  they  were  before  the  contract  was  made; 
and  if  one  of  the  parties  has  derived  any  advantage  from  a  par- 
tial performance  by  the  other,  he  cannot  hold  the  benefit  of  this 
and  rescind  as  to  the  residue,  on  the  ground  of  the  other's  non- 
performance.    2  Par.  on  Cont.,  679. 

If  the  juj'y  believe,  from  the  evidence,  that  the  plaintiff  has 
made  all  the  payments  called  for  by  the  contract,  read  in  evi- 
dence, at  the  time  and  in  the  manner  therein  specified,  except- 
ing the  last  payment  called  for,  and  that  when  the  last  payment 
became  due  he  tendered  to  the  defendant  the  full  amount 
thereof  and  demanded  a  deed  of  the  premises ;  and  further,  that 
the  defendant  was  then  unable  to  convey  the  premises  in  ques- 
tion to  the  plaintiff  by  a  good  and  sufficient  deed  in  fee  simple, 
and  clear  of  all  incumbrances,  and  that  he  failed  and  neglected 
so  to  do  within  a  reasonable  time  thereafter,  then  the  plaintiff 
had  a  right  to  treat  said  contract  as  rescinded,  and  to  sue  for 
and  reco\er  back  the  money  so  paid  Ijy  him,  with  interest  thereon 
at  the  rate  of  six  per  cent,  per  annum,  unless  it  appears,  from  a 
preponderance  of  the  evidence,  that  the  parties,  by  some  subse- 
quent agi'eement,  have  modified  or  otherwise  waived  the  terms 
of  said  origin.al  agreement. 

If  the  jury  believe,  from  the  evidence,  that  before  the  time 
mentioned  in  the  contract  for  the  delivery  of  the  deed,  the  lands 
mentioned  in  the  contract  had  been  sold  for  taxes,  and  a  tax 
deed,  under  said  sale,  delivered  and  recorded  among  the  land 
records  of  this  county,  then  such  tax  deed  would  constitute  an 
incumbrance  on  said  land,  and  the  plaintiff  w'as  not  bound  to 
accept  the  deed  from  the  defendant  until  such  tax  title  should 
be  released  or  conveyed  to  the  defendant. 


IN    CIVIL    ACTIONS, 


89 


The  jury  are  instructed,  that  under  the  contract  read  in  evi- 
dence, the  phiintiff  could  not  call  upon  the  defendant  for  a  deed 
until  the  plaintiff  had  paid  or  tendered  the  last  payment  men- 
tioned in  the  contract,  and  unless  it  appears,  from  a  preponder- 
ance of  the  evidence,  that  through  no  fault  of  the  plaintiff,  and 
after  payment  or  tender  of  the  entire  amount  of  the  purchase 
money,  the  defendant,  upon  demand,  has  refused  or  neglected 
to  tender  to  the  plaintiff  a  deed  of  the  premises  in  question,  the 
jury  should  find  the  issues  for  the  defendant. 

Partial  Performance  —  Breach  of  Contract. — The  court  instructs  the 
jury,  as  a  matter  of  law,  that  where  two  parties  enter  into  a  law-^ 
ful  contract  upon  sufhcient  consideration,  and  one  of  the  parties 
is  ready  and  willing  to  perform,  and  makes  preparation  to  per- 
form on  his  part,  but  is  prevented  from  performing  by  the  other 
party,  the  party  so  ready  and  willing  to  perform  can  recover  all 
damages  suffered  by  him  by  reason  of  the  default  of  the  other 
party,  including  necessary  expenses  incurred  in  making  such 
preparation. 

Hardship  will  not  Excuse  Non-Performance. — The  j  u  ry  are  instructed, 
as  a  matter  of  law^,  that  where  parties  enter  into  a  valid  and 
lawful  contract  for  the  performance  of  an  act  not  impossible  in 
itself,  then  mere  hardship,  or  even  subsequent  impossibility  of 
performance  will  not  excuse  a  non-performance  of  the  contract, 
unless  the  impossibility  of  performance  arise  from  an  act  of  God. 

What  an  Act  of  God The  jury  are  instructed,  that  to  make  an 

act  of  God  an  excuse  for  not  performing  a  covenant,  or  for  not 
complying  with  the  terms  of  a  contract,  performance  must  be 
impossible  by  or  through  any  known  exercise  of  human  skill  or 
power  —  something  must  occur  which  no  ordinary  skill  or  pre- 
caution could  have  foreseen  or  prevented.    2  Par.  on  Cont.,  G72. 

[See  Act  of  God] 

Burden  of  Proving  Breach  of  Contract. — The  court  instructs  the 
jury,  that  to  entitle  the  plaintiff  to  recover  in  this  case  he  must 
prove,  by  a  preponderance  of  evidence,  the  contract  substan- 
tially as  alleged  in  the  declaration,  and,  also,  the  breach  of  the 


90  INSTRUCTIONS 

contract  as  tlierein  alleged  aud  cliarged,  and  nnless  lie  lias  done 
so,  the  jury  should  find  for  the  defendant. 

The  court  instructs  the  jury,  that  to  entitle  the  plaintiff  to 
recover  in  this  case,  he  must  prove  every  material  allegation  in 
his  declaration  by  a  preponderance  of  the  evidence;  he  must 
show,  by  a  preponderance  of  evidence,  that  {liere  follow  the 
charges  in  the  declaration). 

Contract  Made  on  Sunday. — The  court  instructs  the  jury,  that 
so  far  as  the  law  is  concerned,  parties  can  make  a  valid  contract 
as  well  on  Sunday  as  on  any  other  day.  And,  in  this  case,  if 
the  jury  believe,  from  the  evidence,  that  the  parties  did  agree, 
the  one  to  sell  the  corn  and  the  other  to  purchase  it,  that  con- 
tract would  be  binding  upon  both  the  parties,  although  they 
themselves  may  have  supposed  that  to  make  the  contract  bind- 
ino-  they  would  have  to  meet  on  some  other  day  to  ratify  it. 
Moore  et  al.  vs.  Murdoch  et  al..,  26  Cal.,  514. 

Contra. — The  court  instructs  the  jury,  that  all  contracts  made 
in  this  state  on  Sunday,  though  not  absolutely  void,  are  voidable, 
and  neither  party  can  be  bound  to  perform  such  a  contract  against 
his  will.  Meriwether  vs.  Smith,  44  Ga.,  541 ;  Pike  vs.  King, 
1<)  la.,  49;  Feahe  vs.  Conlan,  43  la.,  297;  2  Pars,  on  Cont., 
757. 

3Iarria?e  Conti-acts,  How  ProTed. — The  court  instructs  tlie  jury, 
that  to  prove  a  contract  of  marriage  an  expressed  contract  need 
not  be  shown.  A  mutual  engagement  may  be  inferred  from 
constant  and  devoted  attention,  gladly  welcomed,  from  reciprocal 
affection,  and  the  interchange  of  letters  expressive  of  earnest 
love.  Rockafelloio  vs.  Newcomh,  57  111.,  186;  2  Pars,  on  Cont., 
62;  Royal  vs.  Smith,  40  la.,  615. 

The  court  instructs  the  jury,  that  the  contract  to  marry  may 
be  proved  by  either  positive  or  circumstantial  evidence,  and 
when  it  is  proved,  by  one  or  the  other  mode,  unless  the  evidence 
discloses  facts  absolving  the  party  from  its  observance,  the  party 
must  be  held  liable  for  its  breach  precisely  as  in  the  case  of  any 
other  contract. 

If  the  jury  believe,  from  the  evidence,  that  the  defendant 
promised  to  marry  the  plaintiff,  as  alleged  in  the  declaration, 


IN    CIVIL    ACTIONS.  91 

then  no  actual  jDromise  of  the  phiiutiff  need  he  shown.  E\-i- 
dence  of  her  preparation  for  marriage  and  of  lier  ean-ying 
lierself  as  consenting  to  and  apj^roving  liis  promise,  if  such 
evidence  has  heen  introduced,  would  he  sufficient  to  estahlish  a 
contract  of  marriage  hetween  the  parties. 

Offer  to  Perform  not  Necessary,  When. — The  jury  are  instructed, 
that  if  they  believe,  from  the  evidence,  that  there  was  a  valid 
contract  for  marriage  between  the  plaintiif  and  defendant,  as 
charged  in  the  declaration,  and  that  while  such  conti-act  was 
neither  forfeited  nor  annulled  by  the  plaintiff,  the  defendant 
married  another  woman,  tlien  the  plaintiff  need  neither  allege 
nor  prove  an  offer  to  perform  on  her  part  —  the  law  does  not 
require  a  useless  act. 

The  jury  are  instructed,  that  a  promise  to  marry,  without  any 
sj^ecified  time  for  such  marriage  being  mentioned,  is,  in  law,  a 
promise  to  marry  within  a  reasonable  time;  and  if  the  jury 
believe,  from  the  evidence,  that  such  a  contract  for  marriage 

existed  between  the  parties  to  this  suit,  as  is  alleged  in  the 

count  of  the  declaration,  and  that  a  reasonable  time  had  elapsed 
since  the  making  of  such  contract,  and  before  the  commence- 
ment of  this  suit,  and  that  the  defendant  unjustifiably  failed  on 
his  part  to  fulfill  such  contract,  or  has  married  another  woman, 
then  the  jury  should  find  the  issues  for  the  plaintiff;  and  in  case 
of  the  marriage  of  the  defendant  the  plaintiff  need  not  show  a 
request  to  him  to  perform  his  part  of  his  contract  with  her. 

Uncliastity  no  Defense,  When. — The  court  instructs  the  jury,  that 
when  a  party  enters  into  an  engagement  to  marry  with  a  knowl- 
edge that  the  other  party  is  unchaste,  he  will  be  deemed  to  have 
w^aived  the  objection,  and  cannot  afterwards  set  it  up  as  a  reason 
for  his  refusal  to  comply  wdth  his  promise ;  but  if  either  party 
shall  be  guilty  of  acts  of  uncliastity  subsequent  to  the  engage- 
ment, the  other  party  is  absolved  from  the  contract,  whether 
such  subsequent  acts  be  known  to  the  latter  or  not.  2  Pars,  on 
Cont.,  QQ;  Sprague  vs.  Craig^  51  111.,  28S;  Densloto  vs.  Van 
Horn,  16  la.,  476. 

Desirability  of  Party  Contracting. — The  court  instructs  the  jury, 
that  in  actions  of  this  kind  the  jury  should  not  take  into  con- 


92  INSTRUCTIONS 

sideration  the  desirability  of  the  defendant  as  a  husband,  nor 
whether  the  parties  would  be  likely  to  live  together  happily  or 
otherwise;  that,  in  such  cases,  if  there  be  a  breach  of  promise 
to  marry,  the  woman  loses  the  husband,  not  as  he  might  have 
been,  but  as  he  should  be,  under  the  circumstances  proved. 

Breach  of  Promise,  How  Proved. — The  jury  are  instructed,  that 
under  a  declaration  alleging  a  promise  to  marry  upon  recpiest, 
direct  and  positive  proof  of  request  and  refusal  are  not  recpiired ; 
these  may  be  inferred  from  circumstances,  if  the  jury  believe, 
from  the  evidence,  that  the  circumstances  proved  are  such  as 
show  that  what  passed  between  the  parties  was  equivalent  to  a 
request  and  refusal. 

The  jury  are  instructed,  that  under  a  declaration  charging  a 
promise  to  marry  upon  request,  or  within  a  reasonable  time, 
such  request  need  not  necessarily  be  made  by  the  plaintiff  her- 
self; and  in  this  case,  if  the  jury  find,  from  the  evidence,  that 
there  was  a  valid  subsistino;  contract  of  marriage  between  the 
plaintiff  and  defendant,  and  that  no  definite  time  was  fixed  by 
the  parties  in  the  contract,  then  the  law  would  presume  a  con- 
tract to  marry  within  a  reasonable  time;  and  if  the  jury  further 
Ijelieve,  from  the  evidence,  that  after  the  expiration  of  a  reason- 
able time  from  the  making  of  said  contract,  and  before  the 
commencement  of  this  suit,  the  plaintiff  herself,  or  any  one 
authorized  by  her  for  that  purpose,  called  upon  the  defendant 
and  requested  him  to  marry  the  plaintiff,  and  that  he  refused 
and  neglected  to  do  so,  then  the  jury  should  find  the  issues  for 
the  plaintiff. 

And  the  court  further  instructs  the  jury,  that  if  they  believe, 
from  the  evidence,  that  the  father  of  the  plaintiff,  acting  for  her, 
for  that  purpose,  called  upon  the  defendant  and  requested 
him  to  marry  the  plaintiff,  the  jury  may  infer  his  authority  to 
do  so  from  his  relationship  to  the  plaintiff,  and  such  request  is 
as  effectual  for  the  purposes  of  this  suit  as  though  made  by  the 
plaintiff  herself. 

Subscription  Paper. — The  court  instructs  the  jury,  that  where 
money  is  promised  to  be  paid  upon  a  subscription  paper,  and 
the  j)romise  is  based  upon  the  fulfillment  of  certain  conditions, 


IN    CIVIL    ACTIONS.  93 

or  tlie  performance  of  certain  work,  or  the  attainnicnt  of  certain 
objects,  set  forth  in  tlie  instrument  subscribed,  then  the  per- 
formance of  the  conditions,  or  tlie  laljor,  or  tlie  attainment  of 
the  object  is  sulficient  consideration  to  support  the  promise  to 

pay. 

And  in  such  a  case,  it  is  not  necessary  that  the  parties  named 
in  the  instrument  should  themselves  perform  the  conditions;  it 
is  sufficient  if,  upon  the  faith  of  the  subscription,  the  condition 
lias  been  performed  by  some  one.  1  Pars,  on  Cont.,  452;  Con- 
gregational Society,  etc.,  vs.  Perry,  6  N.  II.,  164;  Miller  vs. 
Ballard,  4G  111.,  377;  State,  etc.,  rs.  Cross,  9  Yt.,  289. 

If  the  jury  believe,  from  the  evidence,  that  the  defendant 
signed  the  subscription  paper  introduced  in  evidence,  and  that 
the  plaintiff,  on  the  faith  of  that  subscrij)tion,  went  on  and  (built 
the  church)  and  became  personally  liable  for  the  cost  thereof^ 
and  that  the  defendant  has  not  paid  his  subscription  or  pro  rata 
share  thereof,  the  jury  should  find  the  issues  for  the  plaintiff. 
Prijor  vs.  Cain,  25  111.,  292. 

If  the  jury  believe,  from  the  evidence,  that  the  defendant  a;t- 
tended  a  public  meeting  in  the  town  of ,  called  for  the  pur- 
pose of  adopting  measures  for  (building  a  churcli)  by  private 
subscription,  and  that  at  that  meeting  the  defendant  and  others 
publicly  announced  what  they  would  severally  give  toward  the 
undertaking,    and   that  the  defendant  then   promised   that   he 

would  give  % to  have  the  said  undertaking  accomplished, 

and  that  the  plaintiff,  relying  upon  said  promises  so  made  by 
the  defendant  and  others,  went  on  and  performed  labor,  or  ex- 
pended time  and  money,  and  completed  the  said    ,  then 

said  defendant  would  be  liable  in  this  action;  if  the  jury  find, 
from  the  evidence,  that  he  has  not  paid  the  amount  so  pi-omised 
by  him,  then  the  jury  should  find  for  the  plaintiff.  ^Yilson  vs. 
McClure,  50  111.,  366. 

The  court  instructs  the  jury,  that  in  this  class  of  cases,  if  all 
the  money  subscribed  was  necessarily  expended  in  securing  the 
end  designed,  the  several  subscribers,  if  liable  at  all  under  the 
evidence,  are  liable  for  the  full  amount  subscribed,  less  such 
sums  as  they  have  already  paid  thereon;  but  if  the  evidence 
shows  that   an  amount  less  than    the  amount   subscribed   was 


94  INSTRUCTIONS 

necessarily  expended,  then  the  recovery  should  be  limited  to 
the  jpro  rata  share  of  the  amount  necessarily  expended,  less  the 
suras,  if  an}',  already  paid.     Miller  vs.  Ballard,  46  111.,  377. 

Composition  Agreement* — On  effecting  a  composition  agreement, 
the  law  demands  the  utmost  good  faith  on  the  part  of  the 
debtor.  He  cannot  be  permitted  to  induce  a  creditor  to  accept 
a  part  of  a  debt  in  lieu  of  the  whole,  by  pretending  to  be  insol- 
vent, when,  in  fact,  he  is  not  so,  and  thereby  defraud  his  credit- 
ors out  of  a  portion  of  their  just  debts. 

Where  a  composition  agreement  is  made,  the  debtor  professes 
to  deal  with  all  the  creditors  who  enter  into  it,  on  terms  of  j)er- 
fect  equality,  and  if  at  the  same  time,  he  has  a  secret  agree- 
ment with  one  of  the  creditors,  which  gives  him  an  undue  ad- 
vantage, this  is  a  fraud  upon  the  other  creditors,  which  vitiates 
the  composition  agreement,  and  in  such  case  a  creditor,  although 
he  may  have  received  the  amount  named  in  the  composition 
agreement,  may  sue  for  and  recover  the  full  amount  of  his 
original  demand,  less  the  amount  received  under  the  composi- 
tion agreement.     Ilefter  vs.  Calm,  73  111.,  296. 

In  this  case,  if  the  jury  believe,  from  the  evidence,  that  for 
the  purpose  of  inducing  any  of  his  creditors  who  have  signed 
the  composition  agreement,  to  sign  the  same,  the  said  defendant, 
made  any  secret  or  private  agreement  with  such  creditor,  or  any 
of  them,  by  which  they  were  to  receive  more,  or  obtain  any  ad- 
vantages, other  than  as  specified  in  such  agreement,  and  that  the 
said  plaintiff,  when  he  signed  the  same  and  received  his  divi- 
dend thereunder,  had  no  knowledge  of  such  secret  agreement, 
these  facts  would  render  the  same  agreement  fraudulent  and 
void  as  to  him,  and  he  would  have  the  right  to  sue  for  and  recover 
the  full  amount  of  his  original  demand,  less  the  amount  received 
under  the  composition  agreement. 

And  in  this  case,  if  the  jury  believe,  from  the  evidence,  that 
at  or  about  the  time  that  the  plaintiff  signed  the  composition 
agreement  in  question,  the  defendant  stated  and  represented  to 
the  plaintiff  that  {<:inij  matter  as  to  his  pecuniary  conditioii)  for 
the  purpose  of  inducing  the  plaintiff  to  sign  the  said  agreement, 
and  that  the  said  plaintiff  believed  such  statements  and  repre- 
sentations to  be  true,  and  was  thereby  induced  to  sign  the  said 


IN    CIVIL    ACTIONS.  95 

agreement;  then,  if  the  jury  further  believe,  from  the  evidence, 
that  the  said  statements  and  representations  were  not  true,  and 
that  the  defendant,  at  the  time  they  were  made,  knew  they  were 
not  true,  then  the  plaintiff  would  not  be  bound  by  the  said 
agreement,  and  he  would  have  a  right  to  sue  for  and  recover 
the  full  amount  of  his  original  claim,  less  the  amount  received 
under  the  composition  agreement.  Armstrong  vs.  M.  JV.  Banh, 
6  Biss.,  520;  Elfelt  vs.  Snow,  2  Sawyer,  94. 

Sale  of  Personal  Property— Future  Delivery.— If  the  jury  believe, 
from  the  evidence,  that  in  the  winter  of  IS 79,  the  defendant 
sold  to  the  plaintiff,  and  the  plaintiff  purchased  the  best  sixty 
head  of  cattle  out  of  defendant's  herd,  that  he  was  then  feeding, 
to  be  delivered  to  the  plaintiff  between  the  1st  and  the  15th  of 
the  following  March,  the  plaintiff,  on  such  delivery,  to  pay 
therefor  six  cents  per  pound,  gross  weight,  of  said  cattle;  and  if 
the  jury  further  believe,  from  the  evidence,  that  during  the 
month  of  February,  the  defendant  sold  and  delivered  to  another 
person  twenty  head  of  cattle  so  sold,  and  thus  put  it  out  of  his 
power  to  comply  with  his  said  agreement,  and  that  plaintiff  was 
ready  and  willing  to  take  and  pay  for  the  cattle  so  purchased 
l)y  him  at  the  time  stipulated  in  said  contract,  and  that  the 
plaintiff  has  sustained  damages  from  defendant's  failure  to 
deliver  the  cattle  as  agreed,  then  the  defendant  is  liable  to  the 
j)laintiff  in  this  action,  and  the  measure  of  damages  is  the  differ- 
erence,  if  any,  between  such  contract  price  and  what  the  cattle 
were  worth  at  the  time  and  place,  when  and  where,  they  were 
to  have  been  delivered  by  the  terms  of  the  contract. 

If  the  jury  believe,  from  the  evidence,  that  in  the  fall  of 
18 — ,  the  defendant  made  a  contract  with  the  plaintiff  for  the 
sale  and  delivery  to  him  of  one  thousand  bushels  of  number  two 
wheat,  at  $ —  per  bushel,  to  be  delivered  at  plaintiff's  place  of 
business,  in  the  city  of  S.,  at  any  time  during  the  then  next 
month  of  April,  whenever  the  plaintiff  should  demand  the  same, 
the  price  to  be  paid  as  the  grain  was  delivered ;  and  further,  that 
during  the  said  month  of  April,  the  plaintiff  demanded  of  the 
defendant  the  delivery  of  said  wheat,  and  was  then  ready  and 
willing  to  pay  for  the  same  as  fast  as  it  should  be  delivered,  and 
that  the  defendant  refused  or  neerlected  to  deliver  the  o-rain  in 


06  INSTRUCTIONS 

accordance  with  such  demaiicl;  and  if  the  jury  further  l)elieve, 
from  the  evidence,  that  at  the  time  of  such  demand  the  market 
price  of  such  wlieat  at  the  said  city  of  S.  was  more  than  the  said 
agreed  price,  then  the  jury  should  find  for  the  plaintiff.  Sleuter 
vs.   Wallhaum,  45  111.,  43. 

No  Demand  Need  1)6  Made,  When. — If  the  jury  believe,  from  the 
evidence,  that  the  defendant  made  with  the  plaintiff  the  agree- 
ment set  out  in  either  count  of  the  plaintiff's  declaration,  and 
that  before  the  time  for  the  delivery  of  the  cattle  tlie  detendant 
put  it  out  of  his  power  to  comply  with  said  agreement,  on  his 
part,  then  it  was  unnecessary  for  the  plaintiff  to  make  a  demand 
for  the  cattle  in  order  to  fix  the  defendant's  liability;  provided, 
it  further  appears,  from  the  evidence,  that  the  plaintiff  was 
ready  and  willing  to  take  and  pay  for  the  cattle,  at  the  time  and 
place  agreed  upon. 

Only  Act  of  God,  or  Public  Enemies,  will  Excuse  Non-Performance.— 

The  court  instructs  the  jury,  that  where  a  person  makes  a  contract 
to  do  a  thing  which  is  in  itself  possible  to  be  done,  he  will  be 
liable  for  a  breach  of  such  contract,  notwithstanding  it  was 
beyond  his  power  to  perform  it.  WalJcer  vs.  Tackei\  TO  111., 
527. 

The  court  instructs  the  jury,  as  a  matter  of  law,  that  where  a 
person  contracts  to  sell  stock  (grain  or  other  personal  property), 
and  deliver  the  same  at  a  specified  place,  upon  a  sj^ecified  dav, 
inclemency  of  the  weather,  bad  condition  of  the  roads,  sickness, 
or  other  unforeseen  contingency,  furnishes  no  excuse  for  the 
non-performance  of  the  contract,  unless  it  be  expressly  so  pro- 
vided in  the  contract.  Kritzinger  vs.  Sanhorn,  70  111.,  14G. 
[See  Act  of  God;  also  Part  I.  Sec.  20.] 

Plaintiff  must  Show  Readiness  to  Perform. — The  court  instructs 
the  jury,  as  a  matter  of  law,  tliat  in  a  suit  by  a  purchaser  of 
articles  of  personal  property,  to  be  delivered  to  him  at  a  certain 
time  and  j^lace,  in  order  to -recover  damages  for  non-delivery,  it 
is  necessary  for  the  plaintiff  to  prove  that  he  was  ready  and 
willing  to  receive  and  pay  for  the  same  at  such  time  and  i>lace. 
Kritzinrjer  vs.  Sanhorn^  70  111.^  146. 


IN    CIVIL    ACTIONS.  97 

If  the  jury  believe,  from  the  evidence,  that  the  defendant 
made  with  the  plaintiff  such  a  contract  for  the  delivery  of  grain, 
as  is  set  forth  in  either  of  the  counts  of  the  plaintiff's  declara- 
tion, and  that  the  plaintiff  was  ready  and  willing  to  receive 
such  grain  and  pay  for  the  same,  as  stated  and  alleged  in  such 
count;  and  if  they  further  l)elieve,  frcjm  the  evidence,  that  the 
defendant  failed  to  perform  his  part  of  the  contract,  as  alleged 
in  the  same  count  of  the  declaration,  without  fault  on  the  part 
of  the  plaintiff,  then  the  defendant  is  liable  in  damages  for  such 
breach  of  the  contract  on  his  part,  if  any  damages  have  been 
thereby  sustained  by  the  plaintiff". 

[See  Part  I.,   Sec.  17.] 

And  in  such  case,  the  measure  of  damages  is  the  difference 
between  the  contract  price  and  the  market  value  of  the  same 
grain  at  the  time  and  place  where  it  should  have  been  delivered 
under  the  contract.     3Ietz  vs.  Albrecht,  52  111.,  491. 

The  court  instructs  the  jury,  that  while  in  a  suit  by  a  pur- 
chaser of  personal  property,  to  be  delivered  at  a  certain  time 
and  place,  it  is  necessary,  in  order  to  recover  damages  for 
non-delivery,  for  the  plaintiff  to  prove  that  he  was  ready  and 
willing  to  receive  and  pay  for  the  property  at  such  time  and 
place;  still,  it  is  not  necessary  that  these  facts  should  be  proved 
by  direct  testimony  thereto;  they  may  be  proved  by  the  facts 
and  circumstances  appearing  in  evidence  on  the  trial,  if  they 
are  of  a  character  to  satisfy  the  jury  that  such  was  the  case. 

When,  by  the  terms  of  a  contract,  the  two  acts  of  selling  and 
delivering,  and  receiving  and  paying,  are  to  be  done  at  the  same 
time,  then,  in  an  action  for  non-delivery,  it  is  only  necessary  for 
the  plaintiff  to  show  that  he  was  ready  and  willing  to  receive 
the  property  and  pay  for  it  at  the  time  and  place  agreed  upon, 
and  this  may  be  proved  by  the  facts  and  circumstances  appear- 
ing in  evidence  on  the  trial,  if  they  are  of  such  a  character  as 
to  satisfy  the  jury  that  the  plaintiff  was  so  ready  and  willing  to 
take  and  pay  for  such  property. 

Tender  of  Performance. — The  jury  are  instructed,  that  if  one 
party  to  a  contract  is  able  and  ready,  and  offers  to  perform  the 
agreement  on  his  part,  but  is  prevented  from  performing  by  the 
other  party,  then  such  offer  will  be  treated  as  excusing  non-per- 


98  INSTRUCTIONS 

formaiice  by  the  party  offering,  and  he  may  recover  the  dam- 
ages, if  any,  sustained  in  consequence  of  not  being  allowed  to 
perform  on  his  part. 

[For  the  Law  of  Warranty,  See  Warranty.] 

Option  Contracts. — The  jnry  are  instructed,  that  a  contract  for 
the  sale  and  future  delivery  of  grain,  by  which  the  seller  has 
the  privilege  of  delivering  or  not  delivering,  and  the  buyer  the 
privilege  of  calling  or  not  calling  for  the  grain,  just  as  they 
choose,  and  which,  on  its  maturity,  is  to  be  filled  by  adjusting 
the  differences  in  the  market  value,  is  an  option  contract,  in  the 
nature  of  a  gambling  transaction  prohibited  by  law\  Pickering 
vs.  Cease,  79  111.,  328;  Li  re.  Green.,  T  Biss.,  338;  Hudolf  vs. 
Winters,  7  Neb.,  125. 


CUSTOM    AN  D    USAGE. 

Custom  and  Usage  Enter  Into  and  Form  Part  of  a  Contract. — The 

court  instructs  the  jnry,  as  a  matter  of  law,  that  when  a  contract 
is  entered  into,  the  parties  are  supjDosed  to  have  reference  to  the 
known  nsages  and  customs  which  enter  into  and  govern  the 
business  or  subject  matter  to  which  the  contract  relates,  if  there 
are  any  such  usages  and  customs,  unless  such  pi-esumption  is 
rebutted  by  the  agreement  itself. 

That  such  customs  as  are  universally  known  to  exist  enter  into 
and  form  a  part  of  every  contract  to  which  they  are  applicable, 
although  they  are  not  mentioned  or  alluded  to  in  the  contract. 
2  Pars,  on  Cont.,  636;  Hughes  vs.  Stanley,  45  la.,  622;  Page 
vs.  Cole,  120  Mass.,  37;  Carter  vs.  Phila.  Coal  Co.,  77  Penn. 
St.,  286. 

That  although  the  usages  of  trade  cannot  be  set  up  to  contra- 
vene an  established  rule  of  law,  or  to  vary  the  terms  of  an  ex- 
press contract,  yet  all  contracts  made  in  the  ordinary  course  of 
business,  without  particular  stipulations  to  the  contrary,  are  pre- 
sumed to  be  made  in  reference  to  the  usages  and  customs  of 
such  trade,  if  any  such  exist.    Lonergan  vs.  Stewart,  55  111.,  41:. 

That  a  usage  of  trade,  in  order  to  be  binding  upon  the  parties, 
must  be  generally  known  and  established  among  those  who  are 


IN    CIVIL    ACTIONS.  99 

engaged  in  the  business  where  the  usage  is  claimed  to  exist,  and 
so  well  settled  and  so  nniforndy  acted  upon  as  to  raise  a  fair 
presunij)tion  that  it  was  known  to  both  the  contracting  parties, 
and  that  they  contracted  in  reference  to  it,  and  in  conformity  to 
it.  Lyon  dc  Co.  vs.  ddhertson,  83  111.,  33;  Cojfman  et  al.  vs. 
Campbell  c&  Co.,  87  111.,  98;  Couch  vs.  The  Watson  Coal  Co., 
46  la.,  17. 

The  court  instructs  the  jury,  that  a  custom,  to  be  binding  as 
such,  must  be  general  and  uniform  in  the  place  or  in  the  Ijranch 
of  business  where  it  is  claimed  to  exist.  It  must  be  certain, 
reasonable,  and  sufficiently  ancient  to  afford  the  presumption 
that  it  is  generally  known.  Leggat  et  al.  vs.  Sands  A.  Co.,  G»J 
111.,  158;  Randall  et  al.  vs.  Smith,  63  Me.,  105. 

Factors  Presumed  to  Conform  to. — That,  when  one  person  em- 
ploys another  to  transact  for  him  a  particular  business,  at  a  par- 
ticular place  or  market,  the  employer  is  presumed  to  have  given 
to  the  other  authority  to  act,  in  accordance  with  the  rules  and 
usages  there  established,  and  generally  known  and  adopted, 
though  the  principal  may  be  ignorant  of  them. 

That  a  person  who  deals  in  a  particular  market  must  be  taken 
to  deal  according  to  the  known,  general  and  uniform  rules  and 
usages  of  that  market,  and  he  who  employs  another  to  act  for 
him  at  a  particular  place  or  market,  in  the  absence  of  a  par- 
ticular contract  to  the  contrary,  must  be  taken  as  intending  that 
the  business  to  be  done  will  be  done  according  to  the  rules  and 
usages  of  that  place  or  market,  whether  he,  in  fact,  knew  of 
such  rules  and  usages  or  not.    Bailey  vs.  Bensley  et  al.,  87  111., 

556. 

[See  Factors  and  Commission  Me7i.] 


100  INSTRUCTIONS 


DEMAND     AND     REFUSAL. 

Wliat  Constitutes. — The  court  instructs  the  jury,  that  no  par- 
ticular form  of  words  is  necessary  in  making;  a  demand  for  the 
possession  of  property  before  bringing  a  suit.  If  the  jury  be- 
lieve, from  the  evidence,  that,  before  connnencing  this  suit,  the 
plaintiff  had  an  interview  with  the  defendant,  and  that,  from 
the  language  then  used  by  plaintiff,  the  defendant  understcxxl 
the  plaintiff  came  for,  and  was  asking  to  have  the  property  in 
dispute  given  up  to  him,  and  that,  with  that  understanding,  de- 
fendant said  "''■  *  *  *  this  in  law  would  be  equivalent  to 
a  demand  and  refusal. 

The  court  instructs  the  jury,  that  while  no  particular  form  of 
words  is  necessary  in  making  a  demand  for  the  possession  of 
personal  property,  still,  to  constitute  a  valid  demand,  the  lan- 
guage used  must  be  such  as  to  clearly  denote  tliat  a  demand  is 
then  made  for  the  possession  of  the  property,  and  so  as  to  leave 
no  reasonable  grounds  for  doubt  as  to  what  property  is  referred 
to;  and  the  demand  must  be  made  by  some  person  authorized 
to  receive  the  possession,  and  then  and  there  present  to  re- 
ceive it. 

To  constitute  a  legal  demand  of  property,  in  this  class  of 
cases,  it  is  not  necessary  for  the  demanding  party  to  make  use 
of  the  word  "  demand,"  or  to  specify,  by  name  or  particular 
description,  the  property  demanded;  but  any  language  which 
makes  known  to  the  party  on  whom  the  demand  is  made  that 
the  demandant  desires  the  possession  of  the  property,  and  in- 
forms him,  by  reference  or  otherwise,  what  property  he  desires 
possession  of,  is  sufficient  to  constitute  a  demand. 

Demand  by  Agent— Gr round  of  Refusal  Must  be  Specified.— The  court 
instructs  the  jury,  that  a  party  holding  property,  which  he  re- 
fuses to  deliver  on  demand,  because  he  doubts  the  authority  of 
the  person  making  the  demand,  must  place  his  refusal  distinctly 
upon  that  ground,  or  that  excuse  will  not  avail  him  upon  the 
trial.     If  the  refusal  to  deliver  is  placed  upon  any  other  ground 


IN    CIVIL    ACTIONS.  101 

at  tlic  time,  the  party  cannot,  after  suit  is  brought,  place  his  re- 
fusal upon  (lilterent  grounds,  as  an  excuse  for  not  delivering  the 
property. 

That  when  a  demand  is  made  by  an  agent,  and  the  person 
from  whom  the  demand  is  made  has  reasonable  grounds  for 
doubting  the  agent's  authority,  he  may  lawfully  refuse  to  com- 
ply with  the  demand.  The  evidence  of  agency  should  be  such 
as  an  ordinarily  prudent  man  would  feel  justified  in  acting  upon, 
knowing  that  he  would  be  liable  for  the  value  of  the  property 
if  he  should  deliver  it  to  a  person  not  authorized  to  receive  it. 
Ingalls  vs.  Bulkley^  13  111.,  315. 


DEBT  — 0  N     BOND. 

Note.— Suit  on  replevin  bond  given  to  the  coroner— Property  replevied 
from  the  sheriff,  who  held  it  on  writ  of  attachment— Plea,  non  eat  factum— 
Defence  by  the  sureties,  that  they  signed  the  bond  in  blank. 

Pi-esumpliou  from  Proof  of  Signature. — The  court  instructs  the 
jury,  that  if  they  believe,  from  the  evidence,  that  the  signatures 
to  the  replevin  bond,  introduced  in  evidence  in  this  case,  are 
the  genuine  signatures  of  the  defendants,  then,  if  there  is  no 
proof  to  the  contrary,  the  presumption  of  law  is,  that  the  said 
bond  was  signed  and  sealed  by  the  defendants,  after  the  body  of 
the  bond  was  filled  up,  as  it  now  appears  to  be;  and  that  it  was 
regularly  and  properly  delivered  to  the  plaintiff,  as  coroner,  in 
its  present  condition,  and  that  all  the  defendants  intended  it 
shoidd  be  so  delivered. 

If  the  jury  believe,  from  the  evidence,  that  the  defendants 
signed  the  said  replevin  bond,  with  a  blank  space  left  in  it  for 
the  insertion  of  the  penalty  of  said  bond,  knowing  of  such  blank 
space,  and  then  delivered  the  same  so  signed  to  T.  E.,  or  to  his 
ao-ent,  with  the  intention  that  the  said  blank  should  be  filled,  so 
as  to  make  the  bond  an  apparently  perfect  instrument,  and  that 
the  same  should  then  be  delivered  to  the  said  plaintiff  as  a  re- 
plevin bond  in  said  case,  and  that  it  was  thereafter  presented  to 
the  plaintiff,  and  accepted  by  him  without  any  notice,  or  knowl- 
edge on  his  part,  that  the  same  was  signed  with  the  amount  of 
the  penalty  in  blank,  and  that  the  plaintiff  then  had  no  knowl- 


J  02  INSTRUCTIONS 

edge  or  notice  in  respect  to  said  bond,  beyond  what  now  appears 
upon  the  face  of  it,  then  the  jury  are  instructed  that  said  bond 
is  valid  and  binding  upon  the  said  defendants,  and  to  the  same 
extent  tliat  it  would  have  been  if  the  said  penalty  had  been 
written  in,  as  the  same  now  appears,  before  the  said  defendants 
signed  the  same.  Smith  vs.  CrooJcer,  5  Mass.,  538;  State  vs. 
Young  et  al.,  2^  Minn.,  551;  Inhabitants  of  S.  Berwick  vs. 
Huntress,  58  Me.,  89;  Pepper  vs.  State,  22  Ind.,  399. 

If  the  jury  believe,  from  the  evidence,  that  the  signatures  to 
the  bond  sued  on  in  this  case,  are  the  genuine  signatures  of  the 
defendants,  then,  before  any  question  of  law  can  arise  as  to  any 
alleged  signing  of  the  same  in  blank,  the  burden  of  proof  is 
upon  the  defendants  to  prove,  by  a  preponderance  of  evidence, 
that  it  was  signed  by  them  Avhile  there  were  blank  spaces  in 
said  bond  not  filled,  as  the  same  now  appear;  and  in  such  case, 
unless  the  defendants  have  shown,  by  a  preponderance  of  evi- 
dence, that  the  said  bond  was  signed  by  them  while  there  were 
snch  blank  spaces  unfilled,  then,  upon  that  question,  the  jury 
should  find  in  favor  of  the  plaintiff. 

Sureties  Bound  by  Action  of  tlieii-  Principal. — Where  the  sureties 
on  a  bond  entrust  it  to  their  principal  in  an  unfinished  condi- 
tion, it  will  be  presumed  that  they  intend  to  vest  him  with 
authority  to  perfect  the  bond,  and  to  add  other  sureties  sutficient 
to  secure  its  approval;  and  such  authority  is  a  continuing  au- 
thority until  some  step  is  taken  by  the  sureties  towards  its  revo- 
cation.     Caioleij,  etc.,  vs.  The  People,  95  111.,  249. 

If  the  jury  believe,  from  the  evidence,  that  the  defendants, 
who  are  sued  as  sureties  in  this  case,  signed  the  bond  uj^on 
which  this  suit  is  brought,  while  there  was  no  writing  in  the 
body  of  the  paper  above  their  signatures,  but  a  mere  printed 
form,  with  blank  spaces  left  for  the  amount  of  the  penalty  and 
other  appropriate  matters  to  make  the  same  a  j^erfect  replevin 
bond,  they  then  knowing  of  su(di  blank  spaces;  and  that  after 
they  had  so  signed  the  same,  they  delivered  it  to  the  said  T.  E., 
or  to  liis  agent,  with  the  understanding  that  such  blank  spaces 
would  1)0  filled,  so  as  to  make  it  a  perfect  replevin  bond,  and 
that  it  then  would  be  delivered  to  the  plaintiff,  and  that  said 


IN    CIVIL    ACTIONS.  103 

blank  spaces  were  afterwards  filled  by  the  said  T.  E.,  his  agent 
or  attorney,  as  they  n<jw  appear;  and  that  said  bond  was  after- 
wai-ds  presented  to  and  accepted  l)y  the  plaintiff  as  a  rei)levin 
bond  in  said  case,  then  the  bond  is  valid  and  binding  on  the  de- 
fendants, no  matter  what  was  the  understanding  of  the  parties 
at  the  time  the  defendants  signed  the  same;  pro%aded,  the  jury 
fiii-ther  believe,  from  the  evidence,  that  the  plaintiff,  when  he 
acce}ited  said  bond,  had  no  notice  or  knowledge  of  such  under- 
standing or  arrangement,  or  that  the  said  bond  had  been  filled 
np  otherwise  than  in  accordance  therewith.  Cltu  of  Chicago 
vs.  Gage,  95  111.,  593. 

If  the  jury  believe,  from  the  evidence,  that  the  said  defend- 
ants, or  either  of  them,  signed  said  bond  while  there  was  a  blank 
left  in  it  for  the  insertion  of  a  j^enalty,  and  then  delivered  the 
same  to  the  witness,  A.  E.,  as  the  agent  of  the  said  T.  E.,  for 
procuring  said  bond,  with  the  understanding  or  agreement  on 
his  part  that  the  said  blank  should  only  be  filled  with  a  penalty 
of  four  thousand  dollars,  and  the  said  A.  E.,  or  the  said  T.  E., 
afterwards  filled  the  said  blank,  or  caused  it  to  be  filled,  with  a 
penalty  of  eight  thousand  dollars;  and  if  the  jury  further  be- 
lieve, from  tlie  evidence,  that  the  said  bond  was  afterwards  pre- 
sented to  and  accepted  by  the  plaintiff  as  the  replevin  bond  in 
that  case,  without  any  notice  or  knowledge  on  his  part  of  such 
agreement  or  understanding,  and  without  any  notice  or  knowl- 
edge in  respect  thereto,  then  the  said  bond  is  as  valid  and  bind- 
ing in  the  hands  of  the  plaintiff  as  though  no  such  agreement  or 
understanding  had  been  made  or  had.  City  of  Chicago  vs.  Gage, 
95  111.,  593. 

The  court  instructs  the  jury,  that  although  they  may  believe, 
from  the  evidence,  that  the  name  of  the  defendant  M.  was  written 
into  the  body  of  the  bond,  and  also  signed  to  the  same,  after  it 
had  been  signed  by  the  other  parties  thereto,  and  after  it  had 
been  shown  to  the  plaintiff,  these  facts  alone  would  not  render 
said  bond  invalid  as  to  such  other  parties;  provided  the  jury 
further  believe,  from  the  evidence,  that  said  name  was  written 
in  and  signed  to  said  bond  before  the  same  was  accepted  and 
appi'oved  by  the  plaintiff,  as  the  replevin  bond  in  the  case  men- 
tioned therein. 


104  INSTRUCTIONS 

The  jury  are  instructed,  that  when  the  sureties  on  a  bond  sign 
it  in  blank,  and  deliver  it  in  that  condition  to  the  principal, 
knowing,  or  having  reason  to  know,  that  the  principal  intends 
to  fill  the  blanks  and  deliver  the  same  to  the  obligee,  for  the 
purpose  of  obtaining  possession  of  propert}'  on  the  faith  of  the 
l)ond;  and  the  principal  afterwards  fills  the  blanks,  delivers  the 
bond,  and  obtains  the  property,  then  the  law  will  presume  that 
the  sureties  authorized  the  principal  to  fill  the  blanks,  and  the 
sureties  will  be  bound  by  the  acts  of  the  principal  to  the  same 
extent  that  they  would  be  l)ound,  had  the  blanks  been  filled  be- 
fore the  said  bond  was  signed  by  them;  provided,  the  person  re- 
ceiving the  bond,  at  the  time  he  received  it,  had  no  notice  or 
knowledge  that  the  blanks  in  the  bond  were  filled  up  otherwise 
than  in  accordance  with  the  instructions  or  understanding  of  the 
sureties.  Butler  vs.  United  States,  21  Wall.,  272;  Bartletty%. 
The  Board  of,  etc.,  59  111.,  364;  Peeper  vs.  State,  22  Ind.,  399; 
Cltii  of  Chicago  vs.  Gage,  95  111.,  593 ;  McCorinich  vs.  Bay  City, 
23  Mich.,  457;  State  x&.  Young,  23  Minn.,  551. 

Where  the  surety  in  a  bond  signs  it  and  delivers  it  to  the  prin- 
cipal, with  the  understanding  that  the  principal  shall  procure 
others  to  sign  the  bond,  before  delivering  it  to  the  obligee,  and 
that  after  procuring  such  signatures,  he  may  deliver  it,  and  the 
princii3al  delivers  the  bond  to  the  obligee  without  procuring  the 
signatures,  the  obligee,  in  absence  of  notice  to  the  contrary,  has 
a  right  to  presume  that  the  princijjal  was  authorized  to  deliver 
the  bond  in  the  condition  in  which  it  was  delivered.  Smith  vs. 
The  Board  of  Supervisors,  59  111.,  412. 

Extent  of  Agent's  Authority. — Tluit  a  special  agent's  authority  is 
that  which  is  given  by  the  terms  of  his  appointment,  or  that 
with  which  he  is  apparently  clothed  by  the  character  in  whicli 
he  is  held  out  to  the  world  by  the  principal.  The  principal  is 
equally  bound  by  the  authority  which  he  actually  gives,  and  b" 
that  which,  by  his  own  acts,  he  appears  to  give;  and  wher  _^e 
( )f  two  innocent  persons  must  suffer  by  the  act  of  a  third  person, 
he  who  has  enabled  such  person  to  occasion  the  loss  must  bear  it. 

What  Proved  by  the  Record. — The  court  instructs  the  jury,  that 
tlie  certified  copy  of   the  record  of  judgment  in  the  replevin 


IN    CIVIL    ACTIONS.  105 

case  oft/.  E.  vs.  T.  M.  R.  and  others,  is  sufficient  evidence  that 
tlie  said  J.  E.  did  nut  prosecute  that  Suit  with  effect,  and  that  a 
return  of  the  property  replevied  in  that  case  was  awarded  by  the 
court  to  the  defendants  in  that  suit. 

If  the  jury  believe,  from  the  evidence,  and  under  the  instruc- 
tion of  the  court,  that  tlie  bond  sued  on  in  this  case  was  a  valid 
and  binding  bond  upon  the  defendants,  and  that  the  property 
mentioned  and  described  in  the  declaration  in  the  replevin  suit 
of  J.  E.  vs.  T.  M.  B.  and  others,  was  not  returned  to  the  defend- 
ants in  that  suit,  or  to  any  of  them,  before  the  commencement 
of  this  suit,  then  the  jury  should  find  the  issues  in  this  suit  in 
favor  of  the  plaintiff. 

[See  Measure  of  Damages.] 


DIVORCE. 

Note. — The  following  instructions,  relating  to  the  subject  of  divorce, 
have  been  prepared  more  especially  with  reference  to  the  statute  of  Illinois, 
relating  to  divorce,  and  the  decisions  under  that  statute;  but,  with  very 
slight  changes,  they  can  generally  be  adapted  to  the  laws  of  most  of  the 
other  states. 

Residence  and  Desertion. — The  jury  are  instructed,  that  in  law 
the  domicile  of  the  husband  is  that  of  the  wife,  and  her  residence 
follows  that  of  the  husband.  When  a  husband  acquires  a  new 
home,  it  is  the  duty  of  his  wife  to  go  with  hiin,  and  if  she  re- 
fuses, without  justification,  for  two  years,  the  husband  will  be 
entitled  to  a  divorce.     Kennedy  vs.  Kennedy,  87  111.,  250. 

Husband  has  the  Right  to  Seiect  the  Residence. — That  the  hnsl  )and 
has  the  right  to  select  his  domicile,  and  to  change  his  residence, 
and  it  is  the  duty  of  the  wife  to  accompany  him,  and  if  she  re- 
fuses without  some  good  and  justiihible  cause,  as  explained  in 
these  instructions,  he  will  not  be  guilty  of  deserting  his  wife  by 
selecting  and  going  to  a  new  home  and  leaving  her  behind.  Bab- 
hitt  vs.  Babhitt,  OU  111.,  277;   1  Bishop  on  Mar.  and  J)iv.,  §  7SS. 

Pi'OYocation  lor  the  Wife  Leavin?— Abusive  Lan!^uag:o. — That  while 
the  statute  has  not  nuidc  abusive  language,  and  the  application 
of  coarse  and  vulgar  epithets,  a  cause  for  divorce,  yet  i^ucli  con- 


106  INSTRUCTIONS 

duct  on  the  part  of  a  husband  toward  his  wife,  and  charging  her 
with  a  want  of  chastity  without  cause,  if  proved,  is  suthcient  to 
Justify  her  in  abandoning  him,  and  in  living  separate  and  apart 
from  him.     Bishop  on  Mar.  and  Div.,  §  726. 

The  jury  are  instructed,  that  the  only  question  presented  by 
the  issues  in  this  case  is,  whether  or  not  the  complainant  and 
defendant  were  living  together  as  husband  and  wife,  at,  etc.,  on, 
etc.,  and  whether  or  not,  at  that  time,  the  defendant  wilfully, 
and  without  just  or  reasonable  cause,  deserted  the  complainant 
and  his  home,  and  has  wilfully  remained  absent  therefrom, 
without  just  and  reasonable  cause,  for  the  space  of  two  years 
prior  to  the  filing  of  the  complainant's  bill  in  this  case. 

Separation  by  Mutual  Consent. — The  jury  are  instructed,  that 
where  a  husband  and  wife,  by  mutual  consent,  agree  to  separate 
and  live  apart,  and,  pursuant  to  such  agreement  and  consent,  they 
do  live  separate  and  apart  from  each  other,  this  will  not  consti- 
tute such  a  desertion  as  is  required  under  the  statute  as  a  ground 
for  divorce.  Cox,  vs.  Cox^  35  Mich.,  461;  1  Bishop  on  Mar. 
and  Div.,  §  7S3. 

Absence  Alone  not  Proof  of  Desertion. — The  jury  are  instructed, 
that  absence  alone  does  not  constitute  desertion.  To  constitute 
desertion,  within  the  meaning  of  the  law,  there  must  not  only  be 
absence,  bnt  this  must  be  coupled  with  an  intention,  on  the  part 
of  the  i^arty  charged,  to  desert  and  permanently  abandon  the 
other  party;  and  in  this  case,  if  the  jury  find  from  the  evidence, 
that  when  the  defendant  left  this  state,  he  went  away  with  the 
intention  of  providing  another  home  for  himself  and  wife,  and 
of  afterwards  sending  for  her,  or  of  returning  and  taking  her 
with  him  to  his  new  home,  this  would  not  amount  to  a  desertion, 
although  continued  for  more  than  two  years. 

And  in  such  case,  before  the  complainant  w^ill  be  entitled  to 
a  divorce  on  the  ground  of  desertion,  the  jury  must  further  be- 
lieve, from  the  evidence,  that  after  defendant  left  he  changed 
his  mind,  and  then  determined  not  to  come  or  send  for  com- 
plainant, bnt  did  intend,  from  that  time,  to  desert  and  abandon 
her,  and  that  such  change  of  intention  occurred  two  years  or 
more  before  the  commencement  of  this  suit.  1  Bishop  on  Mar. 
and  Div.,  §  783. 


IX    CIVIL    ACTIONS,  lOj 

Separation  by  Mutual  Consent— Desire  for  Reconciliation. — AltlioiiL^h 
the  jury  may  believe,  from  the  evidence,  that  at  one  time  the 
parties  to  this  suit  separated,  by  mutual  consent,  still,  if  the  jurv 
further  believe,  from  the  evidence,  that  afterwards  the  com- 
plainant desired  to  renew  her  marriage  relations  with  the  de- 
feudant,  and  in  good  faith  sought  a  reconciliation,  and  expressed 
a  desire  to  have  him  return  and  live  with  her,  and  that  he  refused 
to  accord  to  that  request,  then,  from  that  time,  defendant's  absence, 
if  proved,  would  constitute  a  desertion,  and  if  continued  for  a 
period  of  two  years,  without  justifiable  cause,  as  explained  in 
these  instructions,  would  be  good  ground  for  a  divorce  in  favor 
of  complainant.     1  Bishop  on  Mar.  and  Div.,  §  786. 

Although  the  jury  may  believe,  from  the  evidence,  that  some 
time  about,  etc.,  defendant  professed  a  desire  to  be  reconciled  to 
complainant,  and  requested  her  to  return  and  live  with  him,  still, 
if  the  jury  further  believe,  from  the  evidence,  that  this  request  was 
coupled  with  the  qualification  or  condition  that,  etc.,  such  a  rjual- 
ification  or  condition  was  one  that  complainant  was  under  no 
obligation  to  assent  to,  and  such  an  offer,  if  proved,  can  not 
avail  the  defendant  anything  in  this  suit.  1  Bishop  on  Mar.  and 
Div.,  §  T86. 

Grounds  of  Desertion  by  TTife. — The  jury  are  instructed,  that 
adultery  on  the  part  of  the  husliand,  if  known  to  the  wife  {or 
extreme  and  repeated  cruelty,  or  hahitual  dritnkenness  for  the 
period  of  tico  years),  if  proved,  is  a  good  and  sufficient  cause  to 
justify  a  wife  in  leaving  her  husband  and  living  separate  and  apart 
from  him.  Schouler's  Dom.  Rel.,  90;  Stevens  vs.  Story,  43  Yt., 
327;  Hancock  vs.  MeiricJc,  10  Cusli.,  41;  Rea  vs.  Durhee,  25 
111.,  503. 

Adulter}'  Excuse  for  Desertion. — The  jury  are  instructed,  that 
adultery  ought  not  to  be  presumed,  without  proof ;  but  it  should 
be  clearly  established  by  a  preponderance  of  the  evidence  in  the 
case,  and  unless  the  jury  believe,  from  the  evidence  in  this  case, 
that  the  complainant  did,  prior  to  defendant's  leaving  him.  or 
during  her  absence,  commit  adultery,  then  the  defendant  was 
not  justified  in  leaving  complainant  and  remaining  absent  from 


108 


INSTRUCTIONS 


]iiin  for  the  space  of  two  years — if  the  jury  believe,  from  the 
evidence,  that  she  did  so  leave  and  remain  absent — simply  be- 
cause of  any  suspicions  of  adultery  which  she  may  have  enter- 
tained, in  respect  to  her  husband  and  {these  women,  or  either  of 
them). 

The  jury  are  instructed,  that  if  they  believe,  from  the  evi- 
dence, that  at  the  time  defendant  left  complainant — if  they  be- 
lieve, from  the  evidence,  she  did  so  leave,  as  charged — com- 
plainant was  the  head  of  a  family  consisting  of,  etc.,  and  con- 
tinued to  live  with  such  family,  then  lie  had  a  perfect  right 
to  employ  a  housekeeper  during  that  time,  and  to  associate  with 
her  in  all  ways  that  are  usual  with  men  and  virtuous  females; 
and  to  visit  his  neighbors  and  female  acquaintances,  and  these 
facts  alone,  if  proved,  would  afford  no  evidence  that  he  was 
guilty  of  adultery  with  such  persons. 

Cruelty  as  an  Excuse  for  Desertion. — The  court  instructs  the  jury, 
as  far  as  relates  to  the  alleged  acts  of  cruelty,  that  if  they  be- 
lieve, from  the  evidence,  that  the  defendant  did  leave  the  com- 
plainant, and  remained  aM^ay  from  him,  as  charged  in  the  bill, 
then  to  justify  such  leaving  and  absence,  upon  the  ground  of 
cruel  treatment,  tlie  jury  must  believe,  from  the  evidence,  that 
the  complainant  actually  committed  an  act,  or  acts,  of  personal 
violence  to  the  person  of  the  defendant,  prior  to  the  time  of  the 
alleged  desertion;  and  that  abusive  language,  or  violent  sallies 
of  passion,  is  not  such  violence  as  will  justify  desertion,  if  deser- 
tion has  been  proved ;  nor  would  threats  of  violence  justify  the 
alleged  desertion,  if  it  has  been  proved,  unless  they  vrere  made 
under  such  circumstances  as  would  justify  a  reasonable  appre- 
hension of  bodily  injury  in  case  she  remained. 

The  jury  are  instructed,  that  such  cruelty  as  would  authorize 
a  married  woman  to  leave  the  house  and  home  of  her  husband, 
must  be  acts  of  physical  violence  inflicted  by  him  upon  her  per- 
son; or  such  demonstrations  or  threats  of  actual  violence,  made 
by  him  toward  her,  as  would  induce  a  well-grounded  fear  in  a 
reasonable  mind  that  such  violent  injuries  would  be  inflicted 
upon  her  by  her  husband,  in  case  she  remained.  Carter  vs. 
Carter,  62  ill.,  439. 


IN    CIVIL    ACTIONS.  109 

Acts  of  Cruelty  Must  be  Apprehended  at  tlic  Time. — With  reference 
to  the  alleged  acts  of  cruelty,  ^vhi(•h  are  claimed  to  have  justified 
defendant's  wife  in  leaving  him,  the  court  instructs  the  jury, 
that  it  is  not  material  what  had  formerly  been  the  treatment  of 
his  wife  by  the  defendant,  if  the  jury  believe,  from  the  evidence, 
that  after  all  the  improper  treatment  had  ceased,  she  continued 
to  live  with  him,  without  complaint  or  objection,  and  there  was 
no  repetition  of  bad  treatment  at  the  time  she  left,  and  no  rea- 
sonable ground  to  fear  or  apprehend  such  treatment,  at  the  time 
she  left,  then  the  law  presumes  that  the  former  offenses,  if  there 
were  any,  had  been  forgiven,  and  they  would  not  justify  her  in 
leaving. 

Adultery  as  a  Ground  for  Diyorce. — The  court  instructs  the  jury, 
that  on  a  charge  of  adultery,  as  a  ground  for  divorce,  a  prepon- 
derance of  evidence  is  sufficient  to  estaV)lish  the  charge.  It  is 
not  required  that  the  jury  be  satisfied  of  the  truth  of  the  charge 
beyond  a  reasonable  doubt.      Chestnut  vs.  Chestnut,  88  111.,  548. 

Adultery  Must  be  Proved. — The  jury  are  further  instructed,  that 
the  law  does  not  allow  the  jury  to  presume  the  adultery  of  the 
defendant,  if  the  facts  or  circumstances  relied  upon  to  establish 
it  may  as  well  be  attributed  to  an  innocent  intent  or  motive  as  to . 
a  guilty  one. 

That  wliere  adultery  is  charged,  as  a  ground  for  divorce,  the 
act  charged  is  one  that  tends  to  degrade  the  parties,  and  inflicts 
great  injury  upon  society,  and  if  the  facts  shown  by  the  evidence 
may  as  well  be  explained  upon  the  hypothesis  of  innocence  as 
of  guilt,  then  the  jury  should  always  adopt  the  former  rather 
than  the  latter  hypothesis.      Chestnut  vs.  Chestnut,  88  111.,  54-8. 

The  jury  are  instructed,  that  it  is  wholly  immaterial,  in  this 
case,  whether  the  complainant  has  or  has  not  committed  adultery 
with  the  said  A.  B.,  or  with  any  other  woman,  since  the  commence- 
ment of  this  suit,  as  there  is  no  such  issue  on  trial  before  the 

jury. 

Extreme  and  Repeated  Cruelty  as  a  Ground  for  Divorceo — The  court 
instructs  the  jury,  that  tlie  extreme  and  repeated  cruelty  required 
to  constitute  a  cause  for  a  divorce,  must  be  physical  harm,  as 


110  INSTRUCTIONS 

contradistinguished  from  harsh  or  opprobrious  Language,  or  even 
mental  suffering.  The  crueUy  must  be  grave,  and  subject  the 
person  to  great  bodily  harm,  Henderson  vs.  Henderson,  S8 
III,  248. 

That  a  single  act  of  cruelty  does  not  constitute  sufficient 
grounds  for  a  divorce.  There  must  be  extreme  and  repeated 
cruelty,  which  must  consist  in  physical  violence,  and  not  merely 
angry  or  abusive  epithets,  or  profane  language;  angry  or  abusive 
words,  menaces  or  indignities  do  not  constitute  cruelty,  within 
the  meaning  of  our  statute.     Ernbre  vs.  Enibre,  53  111.,  391. 

Drunkenness  and  Threats. — If  the  jury  believe,  from  the  evidence, 
that  during  the  time  when  defendant  is  charged  with  cruelty, 
he  was  guilty  of  drunkenness  from  time  to  time,  and  when  in- 
toxicated, was  in  the  habit  of  making  threats  of  personal  violence 
against  the  complainant,  then  these  are  facts  which  the  jury  have 
a  right  to  consider,  in  connection  with  all  the  other  evidence  in 
the  case,  in  determining  whether  defendant  has  been  guilty  of 
extreme  and  repeated  cruelt}^  toward  the  complainant,  and  also 
whether  she  had  reasonable  cause  to  apprehend  bodily  harm,  or 
danger  to  life  or  limb,  at  the  time  she  filed  her  bill  in  this  case. 

Personal  Yiolence  JIust  be  Shown. — That  when  a  charge  of  ex- 
treme and  repeated  cruelty  is  the  ground  of  application  for  di- 
vorce, unkind  treatment,  threats  of  personal  violence,  abusive 
language  and  opprobrious  ejDithets,  if  proved,  without  personal 
violence,  do  not  constitute  that  degree  of  extreme  and  repeated 
cruelty  which  the  law  requires,  to  authorize  a  decree  of  divorce 
for  that  cause. 

Acts  of  Cruelty  Must  be  Repeated. — That  a  single  act  of  cruelty,  if 
proved,  does  not  constitute  a  sufficient  ground  for  a  divorce. 
There  must  be  extreme  and  repeated  cruelty,  and  the  acts  of 
cruelty,  to  authorize  a  divorce,  must  be  done  so  recently  before 
the  filing  of  the  bill,  or  under  such  circumstances,  as  to  justify 
the  complainant  in  reasonably  apprehending,  at  the  time  that 
the  bill  is  filed,  that  the  acts  of  violence  or  cruelty  will  be  re- 
peated if  she  continues  to  live  with  tl\e  defendant  in  the  relation 
of  husband  and  wife. 


IN    CIVIL    ACTIONS.  Ill 

To  authorizo  a  divorce,  oii  tlie  ii;roun(l  of  extreme  ami  repeated 
cruelty,  the  acts  complained  of  must  consist  of  physical  violence, 
or  such  as  cause  Ixxlily  pain  and  suft'erin/^.  Mere  an<^rv  or 
abusive  words,  i)rofane  lani!;uage,  menaces  or  indignities,  do  not 
constitute  cruelty,  within  the  meaning  of  our  statute. 

Acts  of  Cruelty  Must  be  Recent. — Even  if  tl/e  jnryshovdd  believe, 
from  the  evidence,  that  the  defendant  has  Ijeen,  at  some  former 
time,  guilty  of  extreme  and  repeated  cruelty  toward  the  com- 
plainant, still,  if  they  believe,  from  the  evidence,  that  for  sev- 
eral years  after  that,  and  before  the  filing  of  this  bill,  the  parties 
had  lived  together  as  man  and  wife,  and  that  defendant's  treat- 
ment of  his  wife,  before  and  at  the  time  of  the  filing  of  the  bill, 
was  such  that  she  had  no  reasonable  ground  for  apprehending 
a  repetition  of  cruel  treatment  when  the  bill  was  filed,  the  jury 
should  find  the  defendant  not  guilty. 

Reason  to  Fear  Cruelty  Must  Exist  When  Bill  is  Filed. — The  court  fur- 
ther instructs  the  jury,  that  to  authorize  a  verdict  in  this  case 
for  the  complainant,  the  jury  must  believe,  from  the  evidence, 
that  before  and  at  the  time  the  bill  in  this  case  was  filed,  the 
treatment  of  the  complainant  by  the  defendant  was  such  as  to 
constitute  what  the  law  deems  extreme  and  repeated  cruelty;  or 
in  case  such  extreme  and  repeated  cruelty  had  been  practiced 
before,  then  such  a  state  of  facts  and  circumstances  must  appear 
from  the  evidence  as  afforded  a  reasonable  ground  for  the  com- 
plainant to  believe  that  she  would,  in  the  future,  receive  from 
her  husband  such  a  degree  of  bodily  injury  as  to  render  it  im- 
proper for  her  to  continue  to  live  with  him;  and  unless  the  jury 
believe,  from  the  evidence,  that  there  was,  at  the  time  the  bill 
in  this  case  was  filed,  reasonable  grounds  for  the  complainant  to 
apprehend  such  cruel  treatment  fi-om  the  defendant,  in  the 
future,  then  they  should  find  for  the  defendant. 

To  authorize  a  divorce,  upon  the  ground  of  extreme  and  re- 
peated cruelty,  there  must  be  acts  or  threats  made  recently  be- 
fore the  filing  of  the  bill;  or  the  cii'cumstancos  must  be  such  as 
to  raise  a  reasonable  apprehension  of  bodily  hurt,  and  show  a 
-state  of  personal  danger  of  injury,  incompatible  with  the  duties 
of  married  life,  at  the  time  the  bill  is  filed. 


112  INSTRUCTIONS 

The  court  instructs  the  jury,  that  the  ultimate  question  for 
them  to  decide  is,  whether  at  the  time  the  bill  in  this  case  was 
filed,  the  defendant  had  been  guilty  of  extreme  and  repeated 
cruelty,  and  whether,  at  that  time,  the  complainant  had  reason- 
able cause  to  fear  a  continuance  of  such  treatment;  and  in  de- 
termining these  questions,  the  jury  should  not  be  influenced  i'l 
their  judgment  by  any  considerations  other  than  such  as  bea.' 
directly  on  these  questions;  the  jury  have  nothing  to  do  with 
any  questions  affecting  the  rights  of  the  parties  to  property,  or 
their  future  means,  or  manner  of  support. 

If  the  jury  believe,  from  the  evidence,  that  the  defendant  had 
been  guilty  of  cruel  treatment  toward  the  complainaut,  at  some 
considerable  time  prior  to  her  leaving  the  defendant,  and  of  the 
filing  of  the  bill  in  this  case,  this  fact  alone  will  not  authorize  a 
verdict  for  the  complainant;  to  authorize  a  verdict  against  tho 
defendant,  it  must  also  appear,  from  the  evidence,  that  at  tho 
time  the  complainant  filed  her  bill  in  this  case,  she  had  reason:i- 
ble  cause  to  apprehend  a  repetition  of  such  treatment  in  the 
future. 

The  courts  do  not  grant  divorce  on  the  ground  of  cruel  treat- 
ment, as  a  punishment  of  offenses  long  since  committed ;  when 
they  do  grant  divorces  upon  that  ground,  it  is  to  prevent  the 
commission  of  such  offenses  in  the  future. 

Acts  of  Cruelty  Provoked  by  Complainant, — If  the  jury  believe, 
from  the  evidence,  that  defendant  has  been  guilty  of  acts  of  vio- 
lence against  the  complainant,  still,  if  they  further  believe,  from 
the  evidence,  that  such  acts  were  provoked  by  complainant's 
misconduct,  then  the  jury  should  not  find  the  defendant  guilty, 
by  reason  of  such  acts  of  violence ;  provided,  such  misconduct  is 
proven  to  have  existed,  and  to  have  been  of  such  character  as 
might  be  reasonably  expected  to  provoke  the  acts  charged  against 
the  husband. 

The  law  will  not  authorize  the  granting  of  a  divorce,  on  the 
ground  of  extreme  and  repeated  cruelty,  if  the  acts  complained 
of  were  inflicted  under  wanton  provocation  on  the  part  of  the 
complainant,  or  if  they  were  only  the  working  of  ordinary 
human  passion,  brought  into  exercise  by  the  misconduct  of  the 


IN    CIVIL    ACTIONS.  IK' 

coiupluiiiiint,  unless  the  violciiee  of  tlie  (lefeiidant,  in  Biicli  case, 
is  out  of  ill  I  jji-oportion  to  the  provocation. 

The  hiw  will  not  permit  a  person,  by  her  misconduct,  to  wan- 
tonly provoke  injury,  and  make  the  injury  thus  received  aground 
for  divorce,  uidess  the  injury  is  out  of  all  proportion  to  the  provo- 
cation. The  law  considers,  in  such  cases,  that  the  person  com- 
plaining has  the  remedy  for  all  ordinary  injuries  in  his  own 
hands,  and  that  there  is  no  occasion  to  resort  to  a  court  of  erpiity. 

Cruelty  Provoked  by  a  Refusal  to  Cohabit. — The  court  instructs  the 
jury,  that  if  they  believe,  from  the  evidence,  that  the  complain- 
ant unreasonably,  and  without  sufficient  cause,  refused  to  accord 
to  the  defendant  the  marriage  rights  of  cohabitation,  and 
that  the  treatment  complained  of  was  provoked  by  such  re- 
fusal, then  the  complainant  is  not  entitled  to  a  verdict  in  this 
cause,  unless  it  appears,  from  the  evidence,  that  the  injuries 
complained  of  were  out  of  all  proportion  to  such  provocation. 

The  law  imposes  upon  the  husband  and  wife  the  duty  of  ac- 
cording, each  to  the  otlier,  the  right  of  sexual  intercourse,  to  a 
reasonable  extent,  unless  there  be  some  physical  cause  render- 
ing such  indulgence  improper  or  unhcalthful,  and  that  a  with- 
holding of  such  riglit,  if  prompted  or  induced  by  motives  of 
dislike,  or  without  proper  cause,  if  proved,  is  such  conduct  as  the 
jury  may  properly  consider  in  determining  whether  there  was 
provocation  for  the  cruelty  charged  or  proven.  ■ 

Hysteria. — The  court  instructs  the  jury,  that  if  they  believe, 
from  the  evidence,  that  at  the  time  that  the  offenses  charged  in 
the  bill  are  alleged  to  have  been  committed,  the  complainant 
was  suffering  from  attacks  of  hysteria,  and  that  the  tendency  of 
that  disease  is  to  partially  derange  the  mental  faculties,  and  to 
blunt  the  moral  sensibilities,  and  to  give  a  person  false  and  ex- 
aggcrate<l  views  and  impressions  of  what  is  actually  occurring 
around  them;  and  if  the  jury  further  believe,  from  the  evidence, 
that  the  mind  of  the  complainant  at  these  times  was  so  affe(;ted, 
then  these  facts  are  pi-oper  to  be  taken  into  consideration  by  the 
jury,  in  connection  with  all  the  other  evidence  in  the  case,  in 
determining  what  degree  of  credibility  should  be  attached  to 
her  testimony  relating  to  the  commission  of  such  offenses. 

8 


114:  INSTKUCTIONS 

The  court  instnicts  the  jury,  that  the  testimony  of  the  doctors 
{and  the  medical  toorks  introduced  in  evidence)  is  competent 
and  legal  evidence  of  the  facts  stated  {in  the  hooks)  and  testi- 
fied to  by  the  doctors,  and  should  be  treated  by  the  jury  as  evi- 
dence in  the  case,  and  considered  by  them  in  connection  with 
all  the  evidence  in  the  case,  in  arriving  at  a  verdict. 

Burden  of  Proof. — The  court  instructs  the  jury,  that  the  com- 
plainant is  bound  to  establish  her  case  by  preponderance  of  evi- 
dence; and  unless  she  has  done  so,  the  jury  should  find  the  issues 
for  the  defendant. 

The  law  requires  that  the  complainant,  to  entitle  her  to  a  ver- 
dict, shall  establish  her  case  by  a  preponderance  of  evidence; 
and  if  the  jury  find  the  testimony  so  contradictory,  or  so  evenly 
balanced,  that  they  are  unable  to  arrive  at  a  satisfactory  conclu- 
sion as  to  the  truth  or  falsity  of  the  charges  against  the  defend- 
ant, then  the  jury  should  find  the  issues  for  the  defendant. 

Condonation. — The  court  instructs  the  jury,  that  in  the  case  of 
condonation,  there  is  an  express  or  implied  agreement  that  the 
party  forgiving  does  so  only  on  the  condition  that  the  party  for- 
given will  not  repeat  the  oifense,  but  will,  in  the  future,  perform 
all  the  marital  duties  the  relation  imposes.  Kennedy  vs.  Kennedy^ 
87  111.,  2.50. 

That  condonation  is  forgiveness  upon  condition  that  the  in- 
jury shall  not  be  repeated,  and  it  is  dependent  upon  future 
good  usage  and  conjugal  kindness;  and  it  must  be  free,  and  not 
obtained  by  force  and  violence,  or  by  fraud.  2  Bishop  on  Mar. 
and  Div.,  §  33. 

The  jury  are  further  instructed,  that  condonation  of  personal 
acts  of  violence  and  cruelty  may  be  avoided  by  abusive  language, 
and  the  use  of  opprobrious  epithets.  A  wife  having  forgiven 
her  husband's  acts  of  physical  cruelty,  may,  from  the  subsequent 
use  of  abusive  and  brutal  language,  and  charges  of  infidelity, 
conclude  that  it  will  end  as  on  former  occasions,  in  personal  vio- 
lence, and  she  is  not  bound  to  wait  and  submit  to  personal  vio- 
lence.    Farnham  vs.  Farnliam^  T3  111.,  497. 

The  court  instructs  the  jury,  that  the  law  is,  that  if  the  injured 
party,  husband  or  wife,  cohabits  wnth  the  other,  subsequent  to 


IN    CIVIL    ACTIONS. 


li; 


an  adulterous  offense,  tlie  party  injured  liavin«,'  the  ability  to 
prove  the  fact,  it  will  be  a  bar  to  a  proceeding  for  divorce  for 
that  offense,  tlie  offense  being  considered  as  thereby  condoned ; 
but  the  court  further  instructs  the  jury,  that  condonation  is 
always  accompanied  with  the  implied  condition  that  the  injury 
shall  n(.t  be  repeated,  and  that  the  offending  party  will  there- 
after treat  the  other  with  conjugal  kindness,  or  the  offense  will 
be  revived.  Davis  vs.  Davis,  10  111.,  334;  2  Bishop  on  Mar. 
and  Div.,  §  43. 


DELIVERY     OF     DEEDS. 

Deed  Takes  Effect  from  Time  of  Delivery. — The  court  instructs  the 
jury,  that  when  the  date  of  a  deed  and  the  delivery  are  differ- 
ent, a  deed  of  real  estate  takes  effect  from  the  date  of  its  deliv- 
ery, and  not  from  the  date  of  the  deed. 

What  Constitutes  Delivery. — To  constitute  a  delivery  of  a  deed 
the  person  who  makes  the  deed  must  not  only  part  with  the 
possession  of  it,  but  he  must  part  with  the  right  to  control  it, 
and  with  the  right  to  recall  it. 

And  if  the  jury  believe,  from  the  evidence  in  this  case,  that 
the  defendant  executed  the  deed  in  question,  sent  it  to  the  re- 
corder's office,  and  had  it  recorded,  and  then  received  it  back 
again  into  his  possession,  such  facts  alone  would  not  constitute  a 
delivery,  and  no  title  would  pass  until  such  deed  was  delivered 
to  the  grantee  or  to  some  one  for  him. 

No  Particular  Form  or  Ceremony  Necessary. — The  court  instructs  the 
jury,  that  no  particular  form  or  ceremony  is  necessary  to  consti- 
tute a  delivery  of  a  deed.  It  may  be  by  acts  without  words,  or 
l)y  words  without  acts,  or  by  both;  anything  which  clearly  man- 
ifests the  intention  of  tlie  grantor  and  of  the  person  to  whom  it 
is  delivered,  that  the  deed  shall  then  become  operative  and  ef- 
fectual, that  the  grantor  shall  lose  all  control  over  it,  and  that 
by  it  the  grantee  is  to  become  possessed  of  the  estate,  is  a  suffi- 
cient delivery.     GunneU\'&.  CocJceriU,  T9  111.,  79. 

A  deed  may  be  delivered  to  a  stranger,  for  the  benefit  of  the 
grantee  named  in  the  deed,  who  may  be  ignorant  at  the  time  that 


116  INSTRUCTIONS 

the  deed  has  been  made,  and  if  the  grantee,  when  informed  of 
the  fact,  assents  to  and  accepts  the  conveyance,  the  deed  will 
take  effect,  and  vest  the  title  in  the  grantee ;  unless  the  evidence 
shows  that  the  rights  of  third  parties  have  intervened  in  the 
meantime.  McPherson  vs.  Featherstone  et  al.,  37  Wis.,  632; 
Concord  Bank  vs.  BelUs,  10  Cnsh.,  276. 

That  the  question  of  the  delivery  of  a  deed  is  one  of  act  and 
intent  both;  the  fact  that  a  deed  passes  from  the  hands  of  the 
grantor  to  the  grantee,  if  proved,  is  not  necessarily  a  delivery  of 
the  deed,  within  the  meaning  of  the  law.  To  constitute  a  deliv- 
ery, it  must  be  delivered  by  the  grantor  and  accepted  by  the 
grantee,  or  by  some  one  authorized  by  him,  with  the  intention 
that  it  shall  then  be  an  operative  instrument,  according  to  its 
terms.  Steele  vs.  Miller,  40  la.,  402;  Stiles  vs.  Probst,  69 
111.,  362. 

The  jury  are  instructed,  that  the  delivery  of  a  deed  need  not 
necessarily  be  made  to  the  grantee  himself.  If  made  to  any  per- 
son for  the  grantee,  and  it  is  absolute  and  unconditional,  and  it 
appears  to  be  for  the  grantee's  benefit,  his  assent  to  the  delivery 
will  be  presumed.      Thomas  vs.  Candor,  60  111.,  244. 

Official  Boud,  Hoav  Delivered  and  Accepted. — The  jnry  are  in- 
structed, that  the  delivery  of  a  bond  {of  county  treasurer)  is  not 
complete  until  it  is  accepted  and  approved  by  the  board  of  super- 
visors. The  bond  can  only  be  accepted  or  rejected  by  the  board, 
as  an  organized  body ;  the  power  cannot  be  delegated.  Cawley 
vs.  The^People,  95  111.,  249. 


EJECTMENT. 
Only  Legal  Titles  Involved.— (ir/tere  Common  Law  Rule  Prevails.) — The 
court  instructs  the  jnry,  that  in  an  action  of  ejectment  it  is  only 
the  legal  rights  of  the  parties,  as  distinguished  from  their  equi- 
table rights,  that  the  jury  have  a  right  to  consider.  In  this  case, 
if  the  plaintiff  shows  a  legal  title  to  the  2:)remises  in  controversv 
as  explained  in  the  following  instructions,  then  no  equitable  right 
in  the  defendant  will  bar  the  i^laintiff's  right  of  recovery,  Tyler 
on  Eject.,  36,  564;  Sims  vs.   Gray,  66  Mo.,  613;  Dawson  vs. 


INCIVIL    ACTIONS.  117 

Ilayden,  07  111.,  52;  Buell  vs.  Trwin,  24  Mich.,  145;    Whijtex^. 
Smith,  4  Sawyer  (Oreg.),  17;  Philljpotts  vs.  Blasdell,  8  Nev.,  Gl. 

Olio  ill  Possession  of  Real  Estate  Presumed  to  be  Owner. — That  while 
it  is  true  that,  to  entitle  the  plaintiff  in  ejectment  to  recover,  ho 
must  not  only  show  title  in  himself,  hut  he  must  also  show  that 
he  was  entitled  to  the  possession  of  the  premises  at  the  commence- 
ment of  the  suit;  still,  the  law  is,  that  the  one  who  shows  the 
better  legal  title  to  real  estate,  is  always  presumed  to  be  entitled 
to  the  possession  of  the  property,  unless  the  other  party  shows 
some  valid  legal  right  to  the  possession  of  the  property,  as  against 
the  true  owner. 

Paper  Title  Shown  by  Plaintiff. — The  court  instructs  the  jviry,  that 
the  deeds  and  papers  introduced  in  evidence  by  the  plaintiff,  in 
this  case,  are  sufficient  to  vest  the  legal  title  to  the  whole  of  the 
{description  of  the  land)  in  the  plaintiff",  and  to  authorize  him 
to  take  the  possession  of  the  whole  of  that  tract  of  land,  as 
bounded  by  the  government  survey  lines,  unless  the  defendant 
has  shown  an  adverse  possession  to  the  same,  or  to  some  part 
thereof,  as  explained  in  these  instructions,  for  a  period  of  twenty 
years  or  more,  befoi'e  the  commencement  of  this  suit. 

Right  to  Possession  Must  be  Shown. — The  jury  are  instructed,  that 
to  entitle  the  plaintiff  to  recover  in  this  case,  it  is  not  sufficient 
for  him  to  show  that  he  holds  the  legal  title  to  the  premises  in 
controversy;  it  must  further  appear,  from  a  preponderance  of 
the  evidence,  that  at  the  time  of  the  commencement  of  this  suit, 
the  plaintiff  was  then  entitled  to  the  possession  of  the  premises. 
Kilgonr  vs.  GocJdey,  83  111.,  109;  Gustin  vs.  Barnhain,  34 
Mich.,  511;  Lotz  vs.  Briggs,  50  Ind.,  346;  Williams  vs.  Mur- 
phy, 21  Minn.,  534;  San  Felipe,  etc.,  vs.  Belshaio,  49  Cal.,  655. 

Title  Can  Only  be  Conveyed  by  Deed. — The  jury  are  instructed,  that 
there  is  no  method  known  to  the  law  for  selling  real  estate,  so 
as  to  convey  the  legal  title  from  one  person  to  another,  except 
by  deed,  in  writing,  and  under  seal,  executed  aiul  delivered  by 
the  person  holding  the  legal  title,  or  else  executed  and  delivered 
by  some  one  authorized,  in  writing  and  under  seal,  by  the  per- 


118  INSTKUCTIOXS 

son  holding  the  legal  title,  to  make  such  deed  for  and  in  the 
name  of  such  owner.  {In  some  states  a  seal  is  dispensed  lolth 
hy  statute.) 

Title  Deduced  from  a  Common  Source. — The  court  instructs  the 
jury,  as  a  matter  of  law,  that  whei'e  both  parties,  in  an  action  of 
ejectment,  claim  to  derive  title  through  or  under  the  same  per- 
son, then  neither  party  is  bound  to  show  title  back  of  that  per- 
son; and  the  one  having  the  better  title  bv  right  from  that 
common  source  has  the  better  title  for  all  the  purposes  of  the 
suit.  Miller  \s.  Hardin,  O-l  Mo.,  545;  Sped  vs.  Gregg,  55 
Cal.,  198;  Morrison  vs.  Wilkersen,  27  la.,  371. 

Both  Parties  Claim  Under  "J.  W." — The  jury  are  instructed, 
that  in  this  case  both  parties  claim  title  to  the  land  in  question 
by  conveyances  from  one  "J.  W.,"  and  the  party  showing  in 
himself  the  earlier  and  better  title  to  the  premises  from  the  said 
J.  W.  nnist  be  regarded  by  the  jury  as  the  legal  owner  of  the 
premises  for  all  the  purposes  of  this  suit. 

That  the  deed  introduced  in  evidence  in  this  case,  from  J.  W. 
and  wife  to  the  plaintiff,  McK.,  is  sufficient  to  vest  the  legal 
title  of  the  premises  in  McK.  from  the  time  it  was  delivered  to 
him ;  and  the  certificate  of  recording,  endorsed  on  the  back  of 
said  deed,  is  sufficient  evidence  that  the  deed  was  filed  for 
record  on  the,  etc. ;  and  the  deed  from  McK.  and  wife  to  H.  M. 
is  sufficient  to  vest  a  legal  title  to  an  undivided  half  of  the 
premises  in  question  in  the  said  E..  M.  from  the  time  that  deed 
was  made  and  delivered  to  him. 

Priority  of  Deeds. — The  court  further  instructs  the  jury,  that 
the  deed  from  J.  W.  and  wife,  having  been  made  and  delivered 
to  the  defendant  after  the  deed  from  the  said  J.  W.  and  wife  to 
McK.  was  recorded,  the  plaintiffs  must  be  deemed  to  have  the 
better  legal  title,  so  far  as  their  respective  titles  depend  upon 
the  deeds  introduced  in  evidence. 

If  the  jury  believe,  from  the  evidence,  that  after  McK.  had 
received  his  deed,  and  had  had  it  recorded,  the  defendant  also 
took  a  deed  for  the  same  land  from  the  said  J.  AY.,  and  went 
into  possession  under  that  deed,  and  made  lasting  and  valuable 


IN    CIVIL    ACTIONS.  119 

improvements  on  tlic  land  without  any  authority  from  the 
})hiiiitiffs,  or  either  ot"  tlieui,  then  the  takini^  of  such  possession, 
and  the  making  of  said  improvements,  will  not  affect  the  plain- 
tiff's right  to  recover  in  this  suit.  Compensation  for  such  im- 
provements, if  any  ought  to  he  made,  will  be  determined  here- 
after in  future  proceedings  before  this  court. 
[See  Part  I.,  Sec.  18.] 

Plaintitrs  Deed  by  way  of  Morti?ag'e. — So  far  as  regards  this  suit, 
it  can  make  no  difference  whether  the  deed  to  the  plaintiff  was 
by  way  of  mortgage  to  secure  the  payment  of  a  sum  of  money 
or  not.  If  it  was  so  made,  it  was  sufficient  to  vest  the  legal  title 
to  the  premises  in  McKay,  and  his  deed  to  R.  M.  was  sufficient 
to  vest  the  legal  title  to  an  undivided  half  of  the  premises  in 
said  M.,  and  these  two  deeds  are  sufficient  to  enable  the  plain- 
tiffs to  sustain  this  a(;tion,  unless  the  jury  find,  from  the  evi- 
dence, under  the  instruction  of  the  court,  that  the  defendant  had 
some  right  to  the  possession  of  the  property  other  than  such  as 
he  ac(piired  by  his  alleged  purchase  from  the  said  J.  W.  under 
the  deed  introduced  in  evidence  by  the  defendant.  Biggen  vs. 
Bird,  55  Ga.,  650. 

If  the  jury  believe,  from  the  evidence,  that  McK.'s  deed  was 
given  to  him  by  way  of  mortgage,  or  to  secure  the  payment  of 
money,  and  that  since  that  time  the  money  so  secured  has  all 
been  paid,  or  settled  up,  between  the  parties,  these  facts  alone 
would  not  prevent  the  plaintiff  from  recovering  in  this  suit  — 
such  payment  or  settlement,  if  proved,  might,  in  another  suit, 
entitle  the  defendant  to  a  reconveyance  of  the  land  from  the 
plaintiff,  l)ut  until  such  reconveyance  the  plaintiff  remains  the 
legal  owner  of  the  land. 

Even  though  the  jury  may  believe,  from  the  evidence,  that  tho 
deed  fi-om  J.  W.  to  the  plaintiff,  McK.,  was  made  by  way  of 
mortgage,  or  to  secure  the  payment  of  money  loaned,  that  cir- 
cumstance alone  would  not  affect  the  plaintiff's  right  to  recover 
in  this  case,  Tlie  deed,  though  a  mortgage,  would  still  be  suf- 
ficient to  vest  the  legal  title  to  the  land  in  McK.;  provided,  the 
jury  find,  from  the  evidence,  that  J.  W.  was  the  owner  of  the 
property  when  he  made  the  deed. 


120  INSTKUCTIONS 

Possession  Prima  Facie  Evidence  of  Title. — The  court  instructs  the 
jury,  that  iu  an  action  of  ejectment,  prior  peaceable  possession 
I)}'  tlie  plaintiff  claiming  to  be  the  owner  in  fee,  if  proved,  is 
2)rima  facie  evidence  of  ownership  and  seizin,  and  is  sufHcient 
to  authorize  a  recovery  unless  the  defendant  shall  show  a  better 
title.  Sherwood  vs.  St.  Paul,  etc.,  Rd.  Co.,  21  Minn.,  127; 
Barger  vs.  Hoohs,  67  111.,  592 ;  Davis  vs.  Thompson,  56 
Mo.,  39. 

That  a  i3erson  in  the  actual  peaceable  possession  of  real  estate 
is  presumed  to  be  the  owner  of  the  fee,  until  the  presumption  is 
rebutted,  and  he  is  not  required  to  sho^v  in  what  manner,  or  by 
what  title,  he  holds,  until  the  plaintiff  shows  a  better  title. 
Dottj  vs.  BurdicJc,  83  111.,  473. 

That  of)en,  visible  and  actual  possession  and  occupation  of 
real  estate  by  a  person  claiming  to  be  the  owner,  is  jprima  facie 
evidence  of  title  in  the  person  so  in  possession.  The  words 
prima  facie  evidence,  mean  evidence  sufficient  to  establish 
title,  unless  some  person  shows  a  better  title. 

If  the  jury  believe,  from  the  evidence,  that  for  some  years 
before,  and  uji  to  the  time  that  J.  W.  delivered  the  deed  of  the 
land  in  question  to  the  plaintiff,  McK.,  the  said  J.  W.  was  in 
the  actual,  open  and  visible  possession  and  occupation  of  the 
lands  in  question,  claiming  to  be  the  owner  thereof,  this  would 
be  sufficient  evidence  to  show  title  in  him  at  the  time  the  deed 
was  made,  and  the  deed  from  him  to  plaintiff,  introduced  in 
evidence  in  this  case,  would  be  sufficient  to  vest  the  title  to  said 
lands  in  the  plaintiff,  unless  the  defendant  has  shown  a  prior  or 
better  title,  as  explained  in  these  instructions. 

First  Possessor  Has  the  Better  Title. — AVhen  both  parties,  in  an 
action  of  ejectment,  claim  title  to  the  premises  by  showing 
simply  possession  at  different  times,  under  claim  of  ownership, 
then  the  first  person  is  deemed  to  have  the  better  title,  unless 
he  delays  for  an  unreasonable  length  of  time  to  assert  his  right 
to  the  jDroperty.  Martin  vs.  Bonsach,  61  Mo.,  556;  Clark  vs. 
Clark,  51  Ala.,  498;  Lum  vs.  Eeed,  53  Miss.,  73;  Jones  vs. 
Easley,  53  Ga.,  454;  Southmayo  vs.  Henley,  45  Cal.,  101. 


I N    C I  V  I L    A  C  r I O  N  S .  121 

Deed  from  Party  in  Possession  Claiming-  Title. — Tlic  court  instructs 
the  jury,  that  if  they  believe,  from  the  evidence,  that  J.  W., 
before  and  up  to  the  time  of  the  making  of  the  deed  to  the 
plaintiff,  was  in  the  actual  possession  of  the  property,  claiming 
to  own  the  same,  then  his  deed  to  the  plaintiff  was  suffi<nent  jyrima 
facie  to  vest  the  title  in  the  plaintiff  as  against  tlic  defendant;  and 
if  the  jury  further  believe  that  that  deed  was  recctrded  in  the  re- 
corder's office  of  this  county,  etc. ;  and,  also,  that  after  that  date  the 
defendant  went  into  the  possession  of  the  land  without  any  riglit 
or  license  from  the  plaintiff,  or  from  some  person  authorized  by 
him  to  give  such  right  or  license,  then  the  jury  should  find  the 
issues  for  the  plaintiff. 


ADVERSE     POSSESSION. 

Note. — As  a  general  rule,  adverse  possession  for  the  statutory  period 
without  color  of  title,  will  bar  a  recovery  by  the  person  holding  the  record 
title.  In  many  of  the  states,  questions  connected  with  the  subject  of  ad- 
verse possession,  are  determined  by  the  presence  or  absence  of  color  of 
title;  and  those  distinctions  should  be  borne  in  mind. 

Title  by  Prescription— Witliout  Color  of  Title. — The  court  instructs 
the  jury,  that  by  the  laws  of  this  state,  if  a  person  goes  into  the 
possession  of  real  estate,  under  a  claim  of  title,  and  continues 
in  the  oj^en,  exclusive,  and  uninterrupted  possession  of  the 
premises  under  such  claim  of  title,  for  the  period  of  [Uventy) 
years,  he  will  be  deemed  to  be  the  true  owner  thereof. 

That  if  the  true  and  real  owner  of  land  permits  another  to  take 
possession  of  the  land,  claiming  it  as  liis  own,  and  to  continue 
such  possession,  openly  and  publicly,  under  such  claim  of  title, 
for  a  period  of  {twenty)  years  or  more,  such  possession  will  ripen 
into  a  right  and  title  in  the  possessor,  and  forever  after  prevent 
such  true  owner  from  taking  possession  of  the  property;  but  in 
order  to  have  this  effect,  the  conmiencement  of  the  possession 
must  have  been  hostile  to  the  rights  of  the  true  owner,  and  must 
be  continued,  openly  and  publi(;ly,  for  the  full  period  of  {ticenti/) 
years,  under  a  claim  of  ownership,  during  all  that  time.  Peter- 
son vs.  MeCullough,  50  Ind.,  35;  Bradley  \&.  West,  60  Mo., 
33;  Ambrose  vs.  Baley,  58  111.,  506. 


122  INSTEUCTIONS 

Must  be  Hostile  in  its  Inception. — The  jury  are  instructed,  that  ad- 
verse possession,  sufficient  to  defeat  the  legal  title,  inust  be  hos- 
tile in  its  inception,  and  continue  uninterruptedly  for  {twenty) 
years;  it  must  be  open,  and  of  such  a  character  as  to  clearly 
show  that  the  occupant  claims  the  land  as  his  own,  and  all  of 
these  things  must  be  proved  by  a  preponderance  of  evidence. 

That  although  the  jury  may  believe,  from  the  evidence,  that 
one  A.  B.,  more  than  20  yeai-s  before  the  commencement  of  this 
suit,  built  a  fence  around  the  land  in  cpiestion  ((>r  otherwise  im- 
proved it),  this  alone  does  not  shovv^  adverse  possession  in  him. 
To  constitute  adverse  possession,  it  must  further  appeal-,  from 
the  evidence,  that  what  he  did  on  the  land  was  not  with  the 
leave  or  permission  of  the  owner,  but  was  done  under  a  claim 
of  right  in  himself,  and  in  hostility  to  the  right  of  the  owner. 
Russell  vs,  Davis,  38  Conn.,  562. 

Permissive  Possession  not  Hostile. — The  jury  are  instructed,  that 
if  a  person  enter  into  the  possession  of  the  lands  of  another,  with 
the  consent  of  the  owner,  for  any  other  purpose  except  to  claim 
the  land  as  his  own,  such  possession  alone,,  no  matter  how  long  it 
is  continued,  will  never  bar  the  right  of  the  owner  to  take  pos- 
session of  his  land  when  he  sees  fit  to  do  so. 

Possession  Subservient  to  the  True  Owner. — That  where  possession 
of  real  estate  is  taken  under  a  claim  consistent  with  or  in  sub- 
ordination to  the  title  of  the  real  owner,  nothing  but  a  clear, 
unequivocal  and  notorious  disclaimer  of  the  title  of  such  owner 
will  render  such  possession  adverse.     Tyler  on  Eject.,  217. 

Possession  Presumed  to  be  Under  Legal  Title. — Tlie  court  instructs 
the  jury,  that  where  one  person  is  shown  to  have  the  legal  title 
to  land,  and  another  person  is  shown  to  be  in  possession  of  the 
property,  if  there  is  no  evidence  to  the  contrary,  the  law  pre- 
sumes that  such  possession  has  been  with  the  consent  of  the 
owner,  and  not  in  hostility  to  his  rights;  and  if  the  person  in 
possession  sets  up  a  claim  to  the  land  by  virtue  of  such  posses- 
sion, the  burden  of  proof  is  on  him  to  show  affirmatively,  by  a 
preponderance  of  the  evidence,  not  only  that  he  has  been  in  the 
open,  public,  and  notorious  possession,  but  it  must  further  ap- 


IN    CIVIL    ACTIONS.  123 

pear,  from  the  evidence,  that  sucli  po.ssession  was  eoiinnenced 
and  continued  in  hostility  to  the  true  owner,  and  under  a  claim 
of  right  as  against  him ;  and  these  matters  must  he  shown  by  clear 
and  affirmative  proof  of  such  facts  as  show  that  such  possession 
was  taken  and  continued  in  hostility  to  such  owner;  the}-  can 
not  be  made  out  by  inference  without  such  pro<jf.  Tyler  on 
Eject,  SCO. 

Paipcr  Title  not  Necessary. — It  is  not  essential  that  a  party,  who 
takes  possession  of  lands  and  holds  adversely  to  the  owner, 
should  enter  under  a  deed,  or  other  written  title,  to  cause  the 
limitation  of  {Uventy)  years  to  run  in  his  favor.  It  is  suffi(;ient 
if  the  party  take  possession  under  claim  of  ownership,  and  hold 
adverse  possession,  as  explained  in  these  instructions,  for  the 
period  of  {twenty)  years.      WeJjber  vs.  Anderson^  73  111.,  439. 

The  court  instructs  the  jury,  that  in  order  to  maintain  a  de- 
fense to  this  action,  under  the  twenty  years'  limitation  law,  it  is 
not  necessary  that  the  defendant  had  a  deed,  or  other  written 
evidence  of  title,  but  if,  under  a  ch  Jm  of  title  or  ownership,  the 
defendant  took  actual  possession  of  the  land  in  question,  and  has 
held  actual,  notorious,  and  exclusive  possession  of  the  land  in 
question  for  a  period  of  {twenty)  years  prior  to  the  commence- 
ment of  this  suit,  claiming  title  thereto,  then  the  plaintiif  is  not 
entitled  to  recover. 

The  court  further  instructs  the  jury,  that  when  a  party  enters 
into  the  possession  of  land,  which  is  vacant  and  unoccupied  at 
the  time,  claiming  it  as  his  own,  such  possession  is  hostile  in  its 
inception  to  the  owner;  and  when  such  possession  is  hostile  in  its 
inception,  and  continues  adversely  for  the  period  of  {twenty)  years, 
and  is  visible,  notorious,  and  exclusive  during  that  period  of  time, 
such  facts,  if  proved  by  the  defendant,  are  a  legal  defense  in 
an  action  of  ejectment. 

If  the  jury  believe,  from  the  evidence,  that  the  defendant  en- 
tered upon  the  land  in  question,  claiming  to  be  the  owner,  and 
continuing  in  the  actual,  visible,  and  notorious  possession  of  the 
same  for  a  period  of  {tioenty)  years,  under  a  claim  of  ownership, 
then  the  plaintiff  is  not  entitled  to  recover. 


124  INSTRUCTIONS 

Possession  by  Successive  Holders. — The  court  instructs  the  jury, 
that  to  constitute  adverse  possession,  as  explained  in  these  in- 
structions, for  the  period  of  [tioenty]  years,  it  is  not  necessary 
that  the  same  person  should  liimself  have  been  in  possession  uf 
the  premises  for  the  whole  of  that  period ;  it  is  sufficient,  if  the 
evidence  shows,  that  he  and  those  under  whom  he  holds  either 
as  heir  or  purchaser,  have  held  such  possession  for  tlie  full  peri(Kl 
of  twenty  years. 

The  jury  are  instructed,  that  although  they  may  believe,  from 
the  evidence,  that  one  A.  B.  went  into  possession  of  the  lands  in 
controversy,  more  than  {twenty)  years  before  the  commencement 
of  this  suit,  and  held  the  same  adversely  to  the  rights  of  the 
plaintiff,  still  the  defendant,  in  this  case,  cannot  avail  himself  of 
the  possession  of  the  said  A.  B.,  unless  it  further  appears,  from 
the  evidence,  that  when  the  defendant  took  possession  of  tlie 
land,  he  acquired  the  rights  of  the  said  A.  B.,  by  purchase,  or 
otherwise. 

Deed  not  Necessary  to  Transfer  Possession. — The  jury  are  instructed, 
that  a  deed  is  not  necessary  to  transfer  the  possession  of  land 
held  adversely,  from  one  person  to  another,  and  when  one  per- 
son succeeds  to  the  possession  of  another,  and  it  becomes  neces- 
sary to  connect  the  possession  of  the  two,  in  order  to  make  the 
period  required  by  law  to  bar  the  owner's  right,  the  transfer  of 
possession  may  be  shown  by  parol  evidence;  in  such  cases  no 
deed  is  required.      Wehher  vs.  Anderso7i,  73  111.,  439. 

Temporary  Line  Fence. — In  this  case,  if  the  jury  believe,  from  the 
evidence,  that  the  defendant  was  allowed  by  the  owner  of  the 
property  in  controversy  to  take  possession  of  it,  and  to  build  the 
division  fence  off  the  line,  as  a  matter  of  convenience  to  tiie 
parties,  without  any  agreement  or  intention  to  make  that  fence 
the  permanent  boundary  line  between  their  adjoining  lands,  and 
that  the  defendant  took  possession  with  the  consent  of  the  owner, 
as  a  matter  of  temporary  convenience,  and  without  any  under- 
standing that  the  property  should  tliereafter  belong  to  the  de- 
fendant, then  such  possession,  no  matter  how  long  continued, 
will  not  bar  the  right  of  the  plaintiff  to  claim  and  take  posses- 


IN    CIVIL    ACTIONS.  125 

sion  of  the  land  if  he  has  otherwise  sliown  himself  entitled  to 
the  same. 

If  the  jury  believe,  from  the  evidence,  that  the  fence  in  ques- 
tion, claimed  by  the  defendant  to  be  the  line  fence  between  his 
land  and  that  of  the;  plaintiff,  does  not  stand  upon  the  true  sur- 
vey line  between  said  lands;  and  if  the  jury  further  believe, 
from  the  evidence,  that  the  fence  was  placed  where  it  now  is 
by  agreement  of  the  parties,  merely  for  the  convenience  of 
working  the  land,  and  not  for  the  purpose  of  marking  the  boun- 
daries according  to  title,  then  neither  party  would  be  bound  by 
the  existence  of  the  fence,  as  establishing  either  an  agreed 
l)Oundary  line  or  adverse  possession  to  the  lands  in  controversy. 
Soule  vs.  Barloic,  49  Vt.,  329. 

tine  Fence  Agreed  Upon. — The  jury  are  instructed,  that  it  is 
perfectly  competent  for  parties  owning  adjoining  lands  to  settle, 
by  agreement,  where  the  division  line  shall  be. 

And  in  this  case,  if  the  jury  believe,  from  the  evidence,  that 
the  plaintiff  and  defendant  owned  adjoining  tracts  of  land,  of 
which  the  land  in  controversy  formed  a  part,  and  that  they  mu- 
tually agreed  npon  the  dividing  line,  and  established  it  as  be- 
tween themselves,  and  afterwards  occupy  according  to  such  line, 
then  it  is  wholly  immaterial  where  the  survey  would  put  the 
line,  as  each  party  would  be  bound  by  his  agreement. 

And  in  determining  whether  there  was  such  an  agreement 
and  establishing  of  the  line,  it  is  competent  for  the  jury  to  take 
into  consideration  the  acts  and  statements  of  the  parties,  the 
acts  done  by  each,  and  the  fixing  and  adjustment  of  fences,  and 
improvements  by  them,  under  such  alleged  agreement,  if  any 
such  are  proved,  together  with  all  the  other  evidence  and  facts 
and  circumstances  proved  on  the  trial.  Cutler  vs.  Callison,  72 
111.,  113;  Tamm  vs.  Kdlogg,  49  Mo.,  118. 

Possession  Under  Color  of  Title  —  Payment  of  Taxes  —  Illinois. — Tlic 
coui't  instructs  the  jury,  that  the  statute  of  this  state  provides 
that  every  person  in  the  actual  possession  of  lands,  under  claim 
and  color  of  title  made  in  good  faith,  and  who  shall,  for  seven 
successive  years,  continue  in  such  possession,  and  shall  also,  dur- 


126  INSTRUCTIONS 

iiig  that  time,  pay  all  taxes  legally  assessed  on  such  lands,  shall 
be  held  and  adjudged  to  be  the  legal  owner  thereof  to  the  ex- 
tent and  according  to  the  purport  of  his  paper  title;  and  all 
persons  holding  under  such  possession,  by  purchase,  devise  or 
descent,  before  said  seven  years  shall  have  expired,  and  who 
shall  continue  such  possession,  and  continue  to  pay  the  taxes,  so 
as  to  complete  the  same  possession  and  payment  of  taxes  for  the 
said  term  of  seven  years,  are  entitled  to  the  benefit  of  the  same 
statute. 

Burden  of  Proof. — The  jury  are  instructed,  that  where  a  party 
sets  up  the  statute  of  limitations  to  bar  an  otherwise  legal  title, 
the  law  holds  him  to  a  strict  compliance  with  every  requirement 
of  the  statute,  and  if  he  fails  to  prove  such  compliance,  the 
statute  will  avail  him  nothing. 

The  court  instructs  the  jury,  that  the  burden  of  proof  is  upon 
the  party  setting  up  the  statute  of  limitations  to  bar  a  recovery 
by  the  person  holding  the  paper  title  to  lands,  to  show  affirma- 
tively, by  a  preponderance  of  evidence,  the  payment  by  him,  or 
some  one  for  him,  of  all  taxes  legally  assessed  upon  the  land, 
and  under  color  of  title  for  seven  successive  years ;  and  in  this 
case,  if  the  jury  believe,  from  the  evidence,  that  the  defendant 
has  failed  to  show  color  of  title  in  himself,  or  in  those  under 
whom  he  holds,  together  with  payment  of  all  the  taxes  legally 
assessed  in  each  and  every  year  for  seven  successive  years,  by  the 
person  or  persons  having  such  color  of  title,  then  the  statute  of 
limitations  cannot  avail  the  defendant. 

That  when  the  benefit  of  the  statute  of  limitations  is  claimed 
under  color  of  title  and  payment  of  taxes  for  seven  successive 
years,  the  party  claiming  such  benefit  must  show  affirmatively 
the  payment  of  all  taxes  legally  assessed  on  the  premises  in 
question  during  said  period,  and  if  he  fails  to  show  the  payment 
of  any  such  tax,  no  matter  how  small  in  amount  it  may  be,  the 
benefit  of  the  statute  must  fail. 

What  Must  be  Shown  Under  Limitation  Law. — The  court  instructs 
the  jury,  that  three  things  must  concur  in  order  that  the  statute 
of  limitations,  set  up  by  the  defendant  in  this  case,  may  avail  as 


IN    CIVIL    ACTIONS.  127 

a  bar  to  the  plaintiff's  right  of  recovery ;  provided,  you  believe, 
from  the  evidence,  under  the  instruction  of  the  court,  that  the 
phiintiff  has  shown  title,  by  deed,  to  the  premises  in  question  in 
himself: 

1st.  There  must  be  what  is  called  in  law,  color  of  title;  or,  in 
other  words,  a  conveyance,  purporting  on  its  face  to  convey  the 
title  to  said  premises  to  the  defendant,  or  to  some  one  under 
whom  he  claims. 

2d.  The  defendant,  or  some  party  under  whom  he  claims,  or 
the  defendant,  together  with  such  person,  must  have  had  actual 
possession  of  the  premises  in  controversy  for  tlie  space  of  seven 
successive  years  previous  to  the  commencement  of  this  suit. 

3d.  That  the  person  having  the  color  of  title  must  have  paid 
all  the  taxes  legally  assessed  against  the  said  premises  during 
said  period  of  seven  years;  and  if  the  jury  believe,  from  the 
evidence,  that  either  of  these  three  things  are  wanting,  the 
statnte  of  limitation  cannot  avail  as  a  defense. 

The  court  instructs  the  jury,  as  a  matter  of  law,  that  as  regards 
the  premises  known  and  described  as,  etc.,  the  defendant  has  not 
shown  any  conveyance  or  color  of  title  to  himself,  or  to  any  one 
through  whom  he  claims,  made  seven  years  before  the  com- 
mencement  of  this  suit;  and  so  far  as  these  premises  are  con- 
cerned, the  statute  of  limitation,  set  up  in  this  case,  cannot  avail 

the  defendant. 

[See  Part  I.,  Sec.  18.] 

What  Constitutes  Possession. — The  court  instructs  the  jury,  that 
it  is  not  necessary  that  land  should  be  enclosed  with  a  fence,  or 
that  a  honse  should  be  erected  upon,  or  tliat  it  should  be  re- 
duced to  cultivation,  to  constitute  possession  of  it.  Such  im- 
provements or  acts  of  dominion  over  the  land  as  will  indicate,  to 
persons  residing  in  the  immediate  neighborhood,  who  has  the 
exclusive  control  and  manao-ement  of  the  land,  will  l)e  sufficient 
to  constitute  possession. 

That  where  land  is  appropriated  to  such  uses  as  it  is  naturally 
fitted  for,  and  the  manner  in  which  it  is  used,  by  the  persons 
claiming  title,  is  such  as  to  notify  the  public  that  such  person 
has  asserted  dominion  over  it,  this  will  constitute  possession. 
Ilubhard  vs.  Kiddo,  87  III.,  578. 


128  INSTRUCTIONS 

Possession  of  Woortland. — Tlie  jury  are  instructed,  that  the  rule 
of  law  is,  that  when  the  land  in  controversy  is  a  timber  lot,  and 
it  is  exclusively  controlled  and  used  to  supply  a  farm  in  the 
neighborhood  with  fuel,  or  with  posts  and  rails,  this  will  consti- 
tute possession,  although  the  land  does  not  join  the  farm,  and  is 
not  enclosed. 

The  jury  are  instructed,  that  actual  possession  of  land  may 
arise  in  any  of  the  different  ways  of  improving  it,  and  which 
are  open  and  notorious  in  their  character,  and  which  show  an 
intention  to  appropriate  it  to  some  useful  purpose,  and  indicate 
an  exclusive  use  and  control  of  the  property  by  the  person 
claiming  possession. 

The  possession  of  land  may  be  held  in  different  modes  —  l)y 
inclosure,  by  cultivation,  by  the  erection  of  buildings,  or  other 
imj^rovements,  or  in  any  mode  that  clearly  indicates  an  exclusive 
approjiriation  of  the  property  by  the  person  claiming  to  hold  it. 
Truesdale  vs.  Ford,  37  111.,  210. 

Enclosure  by  Natural  Objects. — If  the  jury  believe,  from  the  evi- 
dence, that  a  slough  on  the  east  side  of  the  premises  in  question 
served  substantially  for  the  purpose  of  a  fence,  and,  in  connec- 
tion with  other  fences,  made  aii  enclosure  of  said  premises,  the 
slough  should  be  considered  a  fence,  and  the  field  an  enclosed 
field,  for  the  purpose  of  this  trial.  Brumagim  vs.  Bradshaw, 
39  Cal.,  24. 

The  court  instructs  the  jmy,  that  a  person  may  take  and  hold 
possession  of  property  by  inclosing  the  same,  and  for  that  pur- 
pose it  is  not  necessary  that  a  fence  should  surround  every  por- 
tion of  the  land.  The  boundaries  of  a  portion  thereof  may  be 
protected  by  a  fence,  and  the  remainder  defined  and  protected 
by  natural  objects,  such  as  a  lake,  a  river,  or  other  water-course, 
and  such  objects,  when  they  are  apparent  and  serve  the  purposes 
of  a  fence,  are  as  effective  in  defining  the  limits  of  possession  as 
a  fence. 

Possession  Not  Under  Color  of  Title. — The  court  instructs  the  jnry, 
that  where  a  person  claims  jiossession  of  real  estate  without  a 
deed  or  instrument  in  writing  calling  for  boundaries,  his  posses- 
sion will  not  extend  beyond  what  he  has  enclosed  or  actually 


IN    CIVIL    ACTIONS.  129 

occupies.  Ege  vs.  Medlar^  82  Peiin.  St.,  8G  ;  Peterson  vs 
McCullough,  50  Iiid.,  35;  III  (J.  Rd.  Co.  vs.  Lid.  cij  III.  C.  Ry. 
Co.,  85  111.,  211. 

The  jury  are  instructed,  that  when  a  person  has  neither  title 
or  color  of  title  to  an  enclosed  tract  of  land,  the  fact  that  he, 
during  several  years,  cut  fire-wood,  and  made  rails  from  the  tim- 
ber on  it  for  the  use  of  his  farm,  does  not  necessarily  show  actual 
possession.  Such  acts,  if  isolated  and  only  occasional,  may  as 
properly  be  referred  to  continuous  acts  of  trespass  as  indicating 
possession.  To  constitute  possession,  such  acts  should  be  ex- 
clusive and  under  claim  of  title.  Austin  vs.  Rust,  73  111.,  491; 
Sepulveda  vs.  Sepulveda,  39  Cal.,  13. 

Though  the  jury  may  believe,  from  the  evidence,  that  the 
defendant  went  upon  the  land  in  question  in  the  sjDring  of,  etc., 
for  the  purpose  of  taking  possession  of  the  whole  tract,  and 
made  improvements  thereon,  claiming  the  whole  tract;  still,  if 
the  jury  further  believe,  from  the  evidence,-  that  at  that  time 
defendant  had  no  deed,  lease  or  other  written  evidence  of  title 
to  the  premises,  then  such  possession,  in  law,  is  confined  to  the 
quantity  of  ground  actually  taken  possession  of  by  the  de- 
fendant. 

Possession  According  to  Boundaries  in  Title  Papers. — The  court  in- 
structs the  jury,  that  where  a  party  has  title,  or  color  of  title,  to 
woodland,  and  uses  the  land  for  the  purpose  of  obtaining  wood 
for  fuel  or  fencing,  for  a  farm  in  the  neighborhood,  under  a 
claim  of  ownership,  this  will  constitute  a  possession;  and  so,  if  a 
person  holding  a  deed  for  land,  enters  and  clears  off,  breaks  up 
or  improves  a  part,  with  intent  to  follow  up  such  act  with  other 
improvements  on  the  land,  this  will  be  a  possession  of  the  whole. 
Wislson  vs.  Williams,  52  Miss.,  487;  Scott  vs.  Delaneij,  87  111., 
146;  Barger  vs.  Ilohhs,  67  111.,  592;  Fitgate  vs.  Fierce,  49 
Mo.,  441. 

If  the  jury  believe,  from  the  evidence,  that  some  time  on  or 
abont,  etc.,  the  defendant  went  on  to  a  portion  of  the  land  in 
controversy,  under  his  deed,  introduced  in  evidence,  and  broke 
up  a  portion  of  the  land,  and  that  at  that  time  there  was  no  one 
else  in  the  actual  possession  of  said  tract,  or  any  part  of  it,  then 


130  INSTEUCTIOiSrS 

sucli  breaking  and  j)ossessiou  would  extend  to  all  the  land  em- 
braced in  his  deed.     Blanchard  vs.  Pratt,  37  111.,  243. 

The  jury  are  instructed,  that  a  party  who  enters  into  the  pos- 
session of  real  estate,  under  a  conveyance  from  a  person  having 
no  title,  or  under  a  paper  purporting  to  be  a  deed,  but  having 
no  seal,  is  presumed  to  enter  according  to  the  description  in  such 
deed  or  paper,  and  his  occupancy  of  a  part,  claiming  the  wdiole, 
is  construed  as  a  possession  of  the  entire  tract,  which  the  instru- 
ment or  paper  purports  to  convey. 

Notice  by  Possession. — The  jui-y  are  instructed,  that  possession 
under  an  unrecorded  deed,  to  be  iiotice  to  subsequent  hona  fide 
purchasers,  must  be  open,  visible,  and  exclusive;  and  must  be 
such  as  to  apprise  the  community  that  the  occupant  has  appro- 
priated the  property  to  his  own  exclusive  use. 

That  where  a  person  is  in  the  actual,  open,  and  notorious  pos- 
session of  land,  claiming  to  own  the  same,  this  would  afford 
notice  to  the  world  of  all  his  rights  and  equities  in  the  same. 
Sti'onrj  vs.  Shea,  S3  111.,  575 ;  Franklin  vs.  Newsome,  53  Ga.,  580. 

That  when  a  party  is  in  the  actual,  open,  and  visible  posses- 
sion of  land,  under  an  unrecorded  deed,  his  possession  will  afford 
notice  to  the  world  of  his  rights  to  the  land,  whatever  they  may 
be,  equally  with  that  which  would  have  been  given  by  the  re- 
cording of  his  deed.  ^Yalden  vs.  Gridley,  36  111.,  523;  Sjpitler 
vs.  Scofield,  -13  la.,  571. 


ESTOPPEL. 

General  Rule. — The  court  instructs  the  jury,  that  as  a  general 
rule,  a  i^arty  will  be  estopped  from  denying  his  own  acts  and 
admissions,  which  were  expressly  designed  to  influence  the  con- 
duct of  another,  and  which  did  so  influence  it,  and  when  sucli 
denial  w^ill  operate  to  the  injnry  of  the  person  so  acting.  1 
Greenlf.  on  Ev.,  §  207;  Klnnear  vs.  Mackey,  85  111.,  96;  Knox 
vs.  Clifford,  38  Wis.,  651. 

The  court  further  instructs  the  jury,  that  when  a  person,  by 
his  words  or  condu(;t,  voluntarily  causes  another  to  believe  in  the 
existence  of  a  certain  state  of  things,  and  thereby  induces  him 


IN    CIVIL    ACTIONS.  131 

to  act  on  that  belief  so  as  to  change  his  previous  condition,  the 
person  inducing  such  belief  will  be  estopped  from  afterwards 
denying  the  existence  of  such  state  of  things,  to  the  prejudice 
of  the  person  so  acting.     People  vs.  Browyi,  G7  111.,  435. 

That  any  statement  or  admission  by  one  person,  intended  to 
influence  the  conduct  of  another,  if  acted  upon  by  the  latter, 
will  be  binding  upon  the  former;  and  it  is  a  matter  of  no  im- 
portance whether  such  representations  are  made  in  direct  lan- 
guage to  the  plaintiff  himself,  or  whether  they  may  be  implied 
from  the  conduct  of  the  party  sought  Jo  be  charged;  provided, 
such  conduct  was  intended  to  influence  the  actions  of  the  other, 
and  did  so  influence  it,  to  the  latter's  prejudice. 
[See  Principal  and  Agent.] 

Intention  not  Essential. — The  jury  are  instructed,  that  to  consti- 
tute an  estoppel,  it  is  not  necessary  that  the  party  should  design 
to  mislead;  it  is  enough  if  the  act  or  declaration  was  calculated 
to,  and  did,  in  fact,  mislead  another  to  his  injury,  while  acting 
in  good  faith  and  with  reasonable  diligence.  Blair  vs.  Wail, 
69N.  Y.,  113. 

Knowingly  Permitting  Another  to  Deal  with  Property  as  Oi^Tier. — That 
if  the  true  owner  of  pi'operty  stands  by  and  knowingly  suffers 
another  to  sell  his  property,  under  a  claim  of  ownership,  and 
does  not  give  notice  of  his  title  to  the  party  purchasing,  he  will 
be  estopped  from  afterwards  setting  up  his  title  to  the  prop- 
erty. Colwell  vs.  Browe?\  75  111.,  516;  Carroll  vs.  Turner,  51 
Ga.,  177. 

The  jury  are  instructed,  that  whenever  the  circumstances  are 
such  as  to  show  that  the  true  owner  of  property  knows  that 
another  claims  to  own  his  property,  and  is  selling  or  incumber- 
ing it  to  an  innocent  party,  and  he  fails  to  give  notice  of  his  title, 
the  law  will  regard  the  silence  of  the  true  owner  as  a  fraud  up- 
on the  innocent  party,  and  he  will  be  estopped  from  afterwards 
setting  up  his  title  to  defeat  such  innocent  party.  Sehright  vs. 
Moore,^^  Mich.,  02;  Sweeiuj  vs.  Mallory,  G2  Mo.,  185. 

In  this  case,  although  the  jury  may  believe,  from  the  evidence, 
that  plaintiff  was,  in  fact,  the  owner  of  the  property  in  question, 
yet,  if  the  jury  further  believe,  from  the  evidence,  that  he  vol- 


132  INSTRUCTIONS 

iintarilj  and  knowingly  permitted  and  allowed  A.  E.  to  have  the 
possession  of  the  property,  and  to  exercise  such  acts  of  owner- 
ship over  it,  and  to  so  nse,  manage  and  control  the  property  as 
to  authorize  and  justify  an  ordinarily  prudent  man  in  supposing 
that  A.  E.  was,  in  fact,  the  owner  of  the  property;  and  if  the 
jury  further  believe,  froui  the  evidence,  that  the  defendant,  in 
good  faith,  bought  the  property  in  question  from  the  said  A.  E., 
supposing  and  believing  that  he  was  the  owner  thereof,  then  the 
plaintiff  is  estopped  from  now  setting  up  a  claim  to  the  prop- 
erty on  the  ground  that  the  said  A.  E.  was  not  such  owner. 

If  the  jury  believe,  from  the  evidence,  that  before  the  making 
of  the  mortgage  in  question,  the  defendant  represented  to  the 
plaintiff  that  A.  B.,  the  mortgagor,  was  the  owner  of  the  horse 
in  question,  and  that  the  plaintiff  believed  such  representations, 
and,  relying  upon  the  truth  thereof,  loaned  A.  B.  money,  and  in 
good  faith  took  the  mortgage  to  secure  said  loan,  then  it  is 
wholly  immaterial  whether  A.  B,  was  really  the  owner  of  the 
horse  or  not,  as  against  the  defendant,  for  the  reason  that  he  is 
now  estopped  from  denying  such  ownership  as  against  the 
plaintiff. 

Representations  hy  the  Acts  of  a  Party. — That  if  a  person  knowingly 
and  voluntarily  so  conducts  himself  in  relation  to  his  business,  as 
to  justify  persons  dealing  with  him  in  supposing  and  believing  that 
a  certain  state  of  facts  exist,  and  such  persons  do  deal  with  him, 
relying  on  that  inference  and  belief,  the  person  so  conducting 
himself  will  not  afterwards  be  permitted  to  deny  that  such  state 
of  facts  did  exist,  to  the  prejudice  of  persons  acting  upon  such 
belief. 

That  if  a  married  woman  is  in  the  possession  of  property, 
claiming  to  own  and  control  the  same,  and,  on  her  declaration 
of  ownership,  employs  a  party  to  make  improvements  on  the 
same,  under  the  belief  that  it  is  her  separate  property,  she  will 
be  estopped  from  denying  that  she  owned  it,  when  sued  for  the 
value  of  the  labor  performed.  Nixon  vs.  Halley,  78  111,,  611, 
[See  "Married  Women."] 

Representation  Must  Be  Acted  On. — That  before  a  party  can  be 
estopped  from  denying  the  truth  of  any  statement  or  admission 
formerly  made  by  him,  the  jury  must  believe,  from  the  evidence, 


IN    CIVIL    ACTIONS.  166 

that  such  statements  or  admissions  liave  induced  tlic  other  part v 
to  act  differently  from  what  he  otherwise  woukl  liave  done,  had 
not  such  statements  or  admissions  been  made,  and  that  to  per- 
mit such  denial  would  now  prejudice  the  rights  of  such  party 
to  his  injury.    1  Greenlf.  on  Ev.,  §  209. 

Must  Be  a  Fraiiduient  Purpose  or  Result. — The  jury  are  instructed 
that,  to  conclude  a  jKirty  by  an  estoppel,  there  must  be  a 
fraudulent  purpose  on  the  part  of  the  party  against  whom  it  is 
to  be  applied,  or  his  acts  must  prodirce  a  fraudulent  result; 
there  must  be  a  change  of  conduct  induced  by  the  acts  of  the 
party  estopj^ed,  to  the  injury  of  another,  in  order  to  prevent 
him  from  showing  the  truth. 

The  doctrine  of  estoppel  is  based  upon  a  fraudulent  purpose 
and  a  fraudulent  result,  and  if  the  element  of  fraud  is  wantina" 
there  is  no  estoppel.      Chandler  vs.  White,  84  111.,  435. 

That  the  doctrine  of  equitable  estoppels  is  based  upon  a  fraud- 
ulent purpose  and  a  fraudulent  result;  if,  therefore,  the  element 
of  fraud  is  wanting,  there  is  no  estoppel;  if  both  parties  were 
equally  cognizant  of  all  the  facts  and  the  declarations,  or  silence 
of  one  party  produced  no  change  in  the  conduct  of  the  other, 
then  there  is  no  estoppel.     Dorlarque  vs.  Cress,  71  111.,  380. 

Injury  Must  Be  Shown. — That  a  person  is  under  no  legal  obli- 
gation to  tell  the  t]-uth,  at  all  times,  regarding  his  own  business 
or  property,  and  although  the  jury  may  believe,  from  the  evi- 
dence, that  the  i)laintiff  told  the  defendant  at  one  time  (that  tJie 
said  horse  helonged  to  A.  B.),  still,  if  the  jury  believe,  from  all 
the  evidence  in  the  case,  that  that  statement  was  untrue,  or  con- 
trary to  the  fact,  then  the  plaintiff  wnll  not  be  bound  by  such 
statement,  unless  the  jury  further  believe,  from  the  evidence, 
that  the  defendant,  believing  the  statement  to  be  true,  has  acted 
upon  it  and  changed  his  condition,  so  that  now  he  will  be  in- 
jured, or  in  some  manner  prejudiced,  by  permitting  the  truth  to 
prevail. 

[See  Principal  and  Agent  and  Partnership.] 


134:  INSTRUCTIONS 


FACTORS    OR    COMMISSION     MEN. 

Commission  Men  Are  Agents. — The  jury  are  instructed,  tliat  com- 
mission merchants,  wiio  accept  consignments  of  grain  from 
country  shippers,  and  undertake  to  dispose  of  the  same  for  such 
shippers,  and  for  a  commission  to  be  paid  therefor,  are  regarded 
as  the  agents  for  such  shippers. 

Good  Faith  Required. — The  jury  are  instructed,  that  the  law 
requires  a  factor  or  agent  to  exercise  the  utmost  good  faith 
towards  his  j)rincipal ;  and  he  has  no  right  to  realize  a  profit  out 
of  the  property  or  fund  of  his  principal,  intrusted  to  his  care, 
by  any  concealed  management  of  such  property,  or  by  any  vio- 
lations of  his  instructions ;  and  any  such  profit  that  may  arise  in  the 
management  of  his  principal's  property  belongs  to  the  principal. 

The  jury  are  further  instructed,  that  an  agent  must  not,  in 
the  management  of  his  principal's  property,  place  himself  in  a 
position  which  is  adverse  to  that  of  his  principal;  and  he  is  not 
permitted  to  avail  himself  of  any  advantage  his  position  may 
give  him  to  speculate  off  his  principal,  but  all  the  profits  or  ad- 
vantages gained  in  the  transaction  belong  to  the  principal. 

Degree  of  Care  Reqiiii-ed, — The  jury  are  instructed,  that  the  law 
holds  a  consignee,  in  the  conduct  of  the  business  of  the  con- 
signor, to  the  same  degree  of  care  and  diligence  which  a  pru- 
dent man  would  exercise  in  the  management  of  his  own  busi- 
ness.    Story  on  Cont.,  §  301 ;  Pliillips  vs.  Moir,  60  111.,  155. 

The  jury  are  instructed,  that  when  a  shipper  sends  grain  to  a 
commission  man  to  be  sold  by  the  latter,  and  no  instructions  are 
given  as  to  the  price  to  be  obtained,  or  the  time  of  sale,  then  the 
commission  man  may  sell  in  his  discretion,  being  responsible  for 
good  faith  and  the  exercise  of  that  degree  of  care,  discretion 
and  skill  wliich  is  ordinarily  possessed  and  used  by  persons  engaged 
in  the  same  business.      Cotton  vs.  Hiller,  52  Miss.,  7. 

May  Conform  to  Rules  of  the  Market. — The  court  instructs  the 
jury,  that  a  factor  or  commission  man,  while  he  cannot  be  held 
as  a  guarantor  of  the  responsibility  of  persons  to  whom  he  sells 


IN    CIVIL    ACTIONS.  135 

in  tlie  ordinarv  course  of  l)usiness,  and  in  a(;cordancc  willi  tlio 
usages  of  the  market  where  the  sale  takes  i)lace,  inust  nevoitheless 
use  all  rcasonahle  efforts,  and  resort  to  all  rcasonal)ly  available 
sources  of  information  to  it-arn  the  pecuniai-y  liability  of  the 
purchaser;  and  if  he  does  not  do  so,  and  any  loss  occurs  by 
reason  thereof,  he  will  be  liable  for  such  loss.  Foster  vs. 
^¥aller,  75  111.,  4(54. 

The  jury  are  instructed,  as  a  matter  of  law,  that  if  there  be  a 
custom  or  usage  of  long  standing,  not  unlawful,  and  generally 
known  at  the  place  to  which  property  is  consigned  for  sale,  con- 
trolling the  time  within  which  payments  may  be  made  upon 
what  are  known  as  cash  sales,  then  the  consignor  will  be  l)ound 
by  the  custom  ov  usage,  whether  he  in  fact  knows  of  the  usage 
or  not. 

If  the  jury  ])elievc,  from  the  evidence,  that  the  defendant  sold 
the  grain  in  question  for  cash  on  delivery,  without  giving  any 
credit  to  the  purchaser,  then  it  was  his  duty  to  obtain  the  pay 
for  the  grain  before  he  allowed,  it  to  go  beyond,  his  control,  un- 
less the  jury  further  believe,  from  the  evidence,  that  there  is  a 
custom  or  usage  of  long  standing,  uniform  and  generally  known 
among  commission  men  doing  business  on  the  board  of  trade,  in 
{Chicago)^  that  a  sale  for  cash  means  a  credit  until  the  next  day, 
and  that  the  defendant  sold  the  grain  in  question  with  reference 
to  such  custom.  Story  on  Cont.,  §  354;  Dcshler  vs.  Beers,  32 
111.,  368. 

If  the  jury  believe,  from  the  evidence,  that  during  the  time 
covering  the  matters  in  controversy  in  this  suit,  the  plaintiffs 
were  doing  business  as  commission  men  on  the  board  of  trade, 
in  ( Chicago),  and  tliat  the  defcMidant  was  accustomed  to  ship  grain 
to  them,  to  be  sold  and  disposed  of  by  them,  in  the  way  of  their 
business,  he  is  conclusively  presumed  to  have  intended  that  the 
plaintiffs  should  transact  such  business  according  to  the  known, 
general  and  uniform  rules  and  usages  established  for  conducting 
such  business  at  that  place,  if  the  evidence  shows  that  there  were 
any  such  rules  and  usages;  and  that  whether  the  defendant 
knew  of  sut-h  rules  and  usages  or  not  is  immatei-ial,  unless  it  be 
shown,  by  a  preponderance  of  the  evidence,  that  tliei'e  Avas  some 
special  contract  between  the  parties  to  the  contrary. 


ISG  INSTEUCTIONS 

If  the  jury  believe,  from  the  evidence,  that  during  the  time  in 
question,  the  defendant  was  accustomed,  from  time  to  time,  to 
send  grain  to  the  plaintiffs,  to  be  sold  by  them  as  commission 
men,  doing  business  on  tlie  board  of  trade,  in  {Chicago),  and  that 
by  tlie  long  established,  uniform,  and  general  custom  and  usage 
of  that  business  at  that  point,  the  grain  so  shipped  was  placed  in 
elevators,  and  mixed  with  other  grain  of  the  same  kind  and  grade, 
and  a  receipt  or  certificate  issued  by  the  warehousemen  to  the 
consignee,  entitling  him  to  the  amount  of  grain  of  the  kind  and 
grade  specified  in  the  receipts;  and  if  the  jury  further  believe, 
from  the  evidence,  that  it  was  in  accordance  with  the  same  usage 
or  custom  for  the  consignees  to  use  such  certificates  in  making 
sales  of  grain,  in  the  way  of  their  general  business,  without  re- 
gard to  the  particular  grain  upon  which  the  certificates  were 
issued,  then  the  plaintiffs  would  be  justified  in  so  using  the  re- 
ceipts received  by  them  upon  receipt  of  defendant's  grain,  and 
the  transfer  of  such  receipts,  in  connection  with  grain  sold  by 
them,  would  not  of  itself  be  evidence  of  a  sale  of  grain  on 
account  of  defendant,  nor  of  a  sale  of  his  grain. 

if  the  jury  believe,  from  the  evidence  in  this  case,  that  at  the 
time  covering  the  transactions  in  question,  it  was  the  established, 
general,  and  uniform  usage  and  custom  for  commission  men  do- 
ing 1)usiness  on  the  board  of  trade,  in  {Chicago),  to  use  and  trans- 
fer the  receipts  in  their  hands,  for  grain  deposited  in  tlie  eleva- 
tors in  that  city,  whenever  a  sale  was  made  l)y  them,  without 
regard  to  the  particular  person  upon  whose  shipments  such  re- 
ceipts were  issued,  then  the  transfer  of  such  receipts  would  not 
alone  be  evidence  of  the  sale,  or  intended  sale,  of  the  grain  of 
the  person  upon  whose  shipments  the  receipts  were  issued. 

Must  Conform  to  Rules  and  Usages. — The  court  instructs  the  jury, 
that  when  a  principal  employs  a  commission  man  to  buy  {or 
sell)  grain  on  the  board  of  trade  in  {Chicago),  the  commission 
man  is  not  only  bound  to  conduct  the  transaction  with  all  such 
reasonable  and  ordinary  care  and  judgment  as  is  usually  exer- 
cised by  persons  engaged  in  the  same  business,  but  he  is  also 
required,  in  the  transaction  of  the  business  intrusted  to  him,  to 
conform  to  all  the   known,   uniform,  general  and  established 


I  N    C I V  I L    A  C  T I O  N  3 .  107 

rules  and  usages  existing  in  that  market,  if  any  such  arc  shown 
to  exist  by  the  evidence;  and  if  he  fails  to  do  so,  and  any  loss 
results  therefrom,  he  will  have  to  bear  the  loss.  Iloioe  vs. 
Sutherland,  30  la.,  484. 

Marg:iiis. — If  the  jury  believe,  from  the  evidence,  that  before 
and  at  the  time  of  the  transactions  in  question,  the  defendants 
were  commission  men,  doing  business  on  the  board  of  trade  in 
{Chicago),  and  that  some  time  about,  etc.,  the  parties  entered  into 
a  contract,  whereby  it  was  agreed  that  the  defendants  should 
purchase  grain  in  the  {Chicago)  market  for  the  plaintiff,  and  hold 
the  same  until  ordered  by  him  to  sell;  and  that  it  w-as  a  part  of 
the  same  agreement  that  the  plaintiff  should  place  in  the  hands 
of  the  defendants  a  margin,  or  sum  of  money,  equal  to  {five)  cents 
per  bushel  of  the  grain  so  to  be  purchased ;  and  that  in  case  the 
price  of  such  grain  should  fall  in  such  market,  while  the  said 
contract  should  run,  that  then  the  said  plaintiff  should  advance 
to  the  defendants  additional  nuirgins,  as  they  should  from  time 
to  time  demand;  and  if  the  jury  further  believe,  from  the  evi- 
dence, that,  pursuant  to  that  contract,  the  defendants  did  purchase 
the  grain  in  question  for  the  plaintiif,  and  that  the  plaintiff  did 
then  place  in  the  hands  of  said  defendants  a  margin  of  {five) 
cents  per  bushel  of  said  purchase,  and  that  after  that  the  price 
of  said  grain  did  fall  in  said  nuirket,  then  it  became  the  duty  of 
the  plaintiff,  from  time  to  time,  upon  reasonable  notice,  to  ad- 
vance to  the  defendants  additional  margins,  as  the  same  should 
be  demanded  by  them ;  and  if  he  failed  to  do  so,  after  reasonable 
notice,  then  the  defendants  had  a  right  to  sell  such  grain ;  pro- 
vided, they  exercised  good  faith  and  reasonable  discretion  in  so 
doing. 

If  the  jurv  believe,  from  the  evidence,  that  the  parties  entered 
into  the  contract  su]>posed,  and  stated  in  the  last  preceding 
instruction,  and  that  the  defendants  bought  the  grain,  as  therein 
supposed;  then,  if  the  jury  further  believe,  from  the  evidence, 
that  the  market  price  of  the  corn  afterwards  fell,  in  said  mar- 
ket; and  further,  that  the  defendants  notified  the  plaintiff  of  that 
fact,  and  demanded  additional  margins,  and  that  the  plaintiff 
did  not,  within  a  reasonable  time  after  such  notice  and  demand, 
advance   the  maro-ins  so  demanded,  then  the  defendants  had  a 


138  INSTEUCTIONS 

riii'ht  to  sell  said  corn  in  their  discretion,  being  responsible  only 
for  the  exercise  of  good  faith  in  that  behalf.  Corhctt  vs.  Under- 
wood,  S3  111.,  324;  Moeller  vs.  McLagan,  60  111.,  317. 

Factor's  Lien. — The  court  instructs  the  jury,  that  a  commission 
man  has  a  lien  on  the  goods  in  his  possession,  not  only  for  his 
advances,  commissions  and  expenses,  made  and  incurred  upon 
those  particular  goods,  but  he  also  has  a  lien  for  any  general 
balance  due  to  him;  provided,  there  is  no  special  contract  be- 
tween the  parties  waiving  such  lien.  Schifj-er  vs.  Feagi)i,  51 
Ala.,  335;  Tison  et  al.  vs.  Howard,  57  Ga.,  -ilO. 

Right  to  Sell  Witliout  Permission. — The  jury  are  instructed,  that 
a  commission  merchant,  wdio  has  received  consignments  of  grain, 
with  orders  to  hold  the  same,  has  a  lien  thereon  for  any  and  all 
advances  made  and  liabilities  incurred  by  him  on  such  grain ; 
and  when  he  has  made  advances  u23on  such  grain  to  more  than 
its  value,  or  where  such  advances  and  the  proper  charges  and 
expenses  are  equal  to  its  then  market  value,  and  the  commission 
man  has  reasonable  grounds  to  believe  that  such  gi-ain  is  in 
danger  of  deterioration  in  quality  or  depreciation  in  value,  and 
the  consignor,  upon  the  request  of  the  consignee,  neglects  or 
refuses,  after  reasonable  notice,  to  make  such  advances  good, 
and  refuses  or  declines  to  give  permission  to  the  consignee  to 
sell  the  same,  then  the  commission  merchant  has  a  right  to  sell 
such  grain,  or  so  much  thereof  as  is  necessary  to  protect  himself 
from  loss,  without  the  orders  of  the  consignor,  and  even  con- 
trary thereto,  unless  there  be  an  express  agreement  that  this 
shall  not  be  done.  Howard  vs.  Smith,  56  Mo.,  314;  WJiite  vs. 
Sinith,  54  E".  Y.,  522;  Weed  vs.  Adams,  87  Conn.,  378. 

The  jury  are  instructed,  that  when  a  commission  man  makes 
advances,  or  incurs  liabilities,  in  the  discharge  of  his  duties, 
upon  a  consignment  of  goods,  he  may  sell  the  goods,  or  such 
part  thereof  as  shall  be  necessary  to  reimburse  himself,  for  such 
advances  and  liabilities,  including  his  own  proper  charges,  in 
the  exercise  of  a  sound  discretion,  and  in  accordance  with  the 
general  rules  and  usages  of  the  market,  if  any  such  are  proved, 
and  reimbui'se  himself  for  all  such  advances,  liabilities  and 
charges;  provided,  the  consignor  fails  or  neglects  to  reimburse 


IN    CIVIL    ACTIONS. 


139 


1  <i 


the  commission  man  for  sncli  advances  and  liabilities  witliii 
reasonal.lc  time  after  l)eiiig  notilied  so  to  do.     Story  on  Cont., 
357. 

When  May  not  Sell. — The  jury  are  instructed,  that  an  agent  or 
factor,  holding  goods  for  his  principal,  has  no  right,  without  the 
authority  of  the  principal,  to  sell  such  goods,  except  it  he  to  re- 
ind)urse  himself  for  avtiiul  advances  made  or  liabilities  incurred, 
\vhen  he  has  no  funds  in  his  hands  belonging  to  his  principal 
sutHcient  to  reimburse  himself  for  such  advances  and  liabilities, 
and  when  the  principal  fails  or  refuses  to  provide  funds  for  such 
reimbursement  within  a  reasonable  time  after  demand  therefor; 
and  if  he  does  sell  such  goods  for  any  other  purpose,  without  the 
principal's  authority,  or  while  he  has  funds  in  his  hands,  belong- 
ing to  his  principal,  sufficient  to  reimburse  himself  for  such  ad- 
vances and  liabilities,  he  will  render  himself  liable  for  all  loss 
to  the  principal  occasioned  by  such  sale.     Story  on  Cont.,  §  357. 

If  the  jury  believe,  from  the  evidence,  that  the  defendant  was 
holding  the  corn  in  question  for  the  plaintiff,  under  an  agree- 
ment made  between  the  parties,  that  the  defendant  should  so 
hold  it  until  ordered  to  sell  by  the  plaintiff;  provided,  the  plain- 
tiff should  keep  in  the  hands  of  the  defendant  a  sum  of  money, 

known  as  a  margin,  equal  to  at  least then  the  defendant 

would  have  no  riMit  to  sell  the  corn,  in  violation  of  the  plain- 
tiff's  directions  {or  without  orders  from,  him),  on  the  ground 
that  the  margin  was  exhausted,  without  first  notifying  the  plain- 
tiff that  it  was  so  exhausted,  and  giving  him  a  reasonable  time 
within  which  to  put  up  the  margin  so  agreed  upon. 

Selling  Without  Orders  —  Damage  Must  be  Sliomi. — Though  the 
jury  may  find  that  the  defendants  were  not  authorized  to  sell 
the  grain  in  question  at  the  time  they  did  sell  it,  still,  before  the 
plaintiff  would  be  entitled  to  recover  on  that  account,  it  must 
appear,  by  a  preponderance  of  evidence,  that  he  has  suffoi-ed 
some  damage  thereby,  and  the  jury  can  only  allow  for  that  vio- 
lation of  duty,  if  it  be  a  violation,  such  an  amount  of  damages 
as  the  jury  believe,  from  the  evidence,  the  plaintiff  has  sustained 
as  the  direct  consequences  thei*eof. 


liO  INSTRUCTIONS 

Account  Stated. — If  the  jury  believe,  from  the  evidence,  that 
the  plaintiffs  were  commission  men,  doing  business  in  Chicago, 
and,  in  the  way  of  their  business,  were  from  time  to  time  re- 
ceiving grain,  sent  to  them  from  the  defendant,  to  be  sold  for 
him  by  them,  and  were  also,  from  time  to  time,  making  payments 
to  defendant  on  account  of  such  sales,  or  advancing  money  to 
him  in  connection  with  said  business;  and  further,  that  the 
plaintiffs,  from  time  to  time,  sent  to  the  defendant,  statements  of 
the  accounts  between  them,  which  were  received  by  defendant, 
and  that  he  did  not,  within  a  reasonable  time,  object  to  said 
statements  and  notify  the  plaintiffs  of  said  objection,  then,  as  a 
matter  of  law,  the  jury  should  regard  the  defendant  as  admit- 
ting that  the  accounts  were  correctly  stated,  and  he  will  be  bound 
by  them,  unless  it  is  shown,  by  a  preponderance  of  the  evidence, 
that  there  was  some  error  or  mistake  in  the  accounts  as  rendered 
to  him,  of  which  he  was  not  informed  at  the  time  he  so  con- 
sented to  them, 

[See  further,  Account  Stated,  also  Custom  and  Usage.} 


FORCIBLE  ENTRY  AND  DETAINER. 

Note. — The  following  instructions  are  believed  to  present  the  general 
rules  of  law  pertaining  to  this  action ;  but  these  laws  differ  in  the  different 
states. 

Title  not  Involved. — The  court  instructs  the  jury,  that  in  this 
action  the  title  to  the  property  in  question  is  not  involved;  the 
material  questions  in  the  case  for  the  jury  to  determine  are  the 
right  to  the  possession  of  the  premises.  Myers  vs.  Koening, 
5  Feb.,  419. 

The  jury  are  instructed,  that  the  law  requires  a  person  who 
claims  title  and  the  right  to  the  possession  of  premises  in  the 
actual,  jDcaceable  possession  of  another,  to  resort  to  his  legal 
remedies  instead  of  taking  the  law  into  his  own  hands,  and 
gaining  such  possession  by  force,  or  by  invading  the  actual, 
peaceable  possession  of  another. 

That  although  the  jury  may  believe,  from  the  evidence,  that 
the  defendant  was  the  legal  owner  of  the  premises  in  question, 
and  was  lawfully  entitled  to  the  possession  thereof,  still,  if  the 


IN    CIVIL    ACTIONS.  1  H 

jury  furtlier  believe,  from  the  evidence,  tliat  the  phtiiitiff  was  in 
the  actnal,  exchisive  and  peaceable  possession  ot"  the  premises, 
the  defendant  would  have  no  right  to  forcibly  enter  and  expel 
the  plaintiff  therefrom.  Cooley  on  Torts,  323;  Dihourtk  vs. 
Fee,  52  Mo.,  130;  Iluftalin  vs.  Misner,  70  III,  205. 

The  jury  are  instructed,  as  a  matter  of  law,  that  in  this  state 
the  owner  in  fee  of  lands  is  not  permitted  to  enter  npon  the 
possession  of  the  same  while  they  are  in  the  acjtual  and  peace- 
able occupation  of  another,  against  the  will  of  the  latter,  and  if 
he  does  so,  the  law  will  require  him  to  restore  the  possession  to 
such  occupier. 

Entry  by  Force  not  Necessary. — The  court  instructs  the  juiy,  that 
it  is  not  necessary,  in  order  to  constitute  a  forcible  entry,  that 
actual  force  or  violence  should  be  used ;  any  entry  upon  the  pos- 
session of  another,  without  his  consent  and  against  his  will,  is  a 
forcible  entry,  within  the  meaning  of  the  law. 

If  the  jury  believe,  from  the  evidence,  that  the  plaintiff  was 
in  the  actual  and  peaceable  possession  of  the  premises  in  ques- 
tion, on,  etc.,  and  that  on  that  day  the  defendant  intruded  into 
and  took  possession  of  said  premises,  against  the  will  and  with- 
out the  consent  of  the  plaintiff;  and  if  they  further  believe,  from 
the  evidence,  that  the  plaintiff,  before  the  commencement  of 
this  suit,  made  a  written  demand  upon  the  defendant  to  surren- 
der the  possession  of  said  premises  {or  according  to  the  require- 
ments of  the  statute),  and  that  the  defendant  refused  to  comply 
with  such  demand,  then  the  jury  will  find  a  verdict  for  the 
plaintiff. 

If  the  jury  believe,  from  the  evidence,  that  the  plaintiff  was 
in  the  peaceable  possession  of  the  premises  sued  for,  and  that 
while  he  was  so  in  possession,  the  defendant,  at  the  time  alleged, 
entered  upon  such  possession,  without  the  consent  and  against 
the  will  of  the  plaintiff,  and  still  holds  such  possession;  and  if 
the  jury  further  believe,  from  the  evidence,  that  before  the 
commencement  of  this  suit,  tlie  plaintiff'  made  a  written  demand 
upon  the  defendant  for  the  possession  of  said  premises  {or  fol- 
lowing the  reqmrements  of  the  statute),  fhcn  the  jury  sliould 
find  a  verdict  for  the  plaintiff.  Orqif  vs.  Ballliiger^  18  III., 
2Q0\ McCartney  vs.  Auer,  50  Mo.,  3D5. 


142  INSTRUCTIONS 

The  Real  Question  in  Issne. — The  jury  are  instructed,  that  whether 
the  plaintiff  was  lawfully  or  unlawfully  in  the  possession  of  the 
premises,  is  a  matter  of  no  consequence  in  this  suit.  The  ma- 
terial questions  for  the  jury  to  determine  by  the  evidence,  are 
whether,  in  fact,  at  the  time  in  question,  the  plaintiif  was  in  the 
actual,  peaceable  possession  of  the  premises  in  question,  and 
whether  the  defendant  entered  upon  such  possession  against  the 
will  of  the  plaintiff,  and  retains  such  possession;  and  if  the  jury 
find  both  these  points  in  favor  of  the  plaintiff  {and  that  he 
served  a  loritten  demand  for  such  possession  topon  the  defend- 
ant before  the  commencement  of  this  suit),  then  the  jury  should 
find  the  defendant  guilty.  Allen  vs.  Tohias,  77  III,  169 ;  Jones 
vs.  Shay,  50  Cal.,  508. " 

If  the  jury  believe,  from  the  evidence,  that  prior  and  up  to 

about  the day  of,  etc.,  the  plaintiff  was  in  the  actual  and 

peaceable  possession  of  the  premises  in  question,  either  by  him- 
self or  his  agent,  and  that  while  the  plaintiff  was  so  in  posses- 
sion, the  defendant  intruded  himself  into  such  possession  with- 
out the  consent  of  the  plaintiff,  such  intrusion  would  l)e  unlaw- 
ful, and  will  render  the  defendant  liable  in  this  action ;  provided, 
the  jury  further  believe,  from  the  evidence,  that  {a  written 
demand  was  made  upon  him  for  the  possession  of  said  premi- 
ses) before  the  commencement  of  this  suit,  and  that  he  refused 
to  surrender  such  possession. 

Possession  by  Tenant. — If  the  jury  believe,  from  the  evidence, 

that  prior  and  up  to  about  the day  of,  etc.,  the  plaintiff  was 

in  the  actual,  peaceable  possession  of  the  premises  in  question, 
by  A.  B.,  his  tenant,  and  that,  on  or  about  that  time,  the  said  A. 
B.,  moved  out  without  the  knowledge  of  the  plaintiff,  and  left  the 
premises  temporarily  unoccupied,  these  facts  would  not  author- 
ize the  defendant  to  enter  upon  said  premises  and  take  the 
possession  thereof  without  the  consent  of  the  plaintiff ;  and  if  the 
jury  further  believe,  from  the  evidence,  that  the  defendant  did 
so  take  possession,  then  the  plaintiff  would  be  entitled  to  a  ver- 
dict {provided,  the  evidence  shows  that  the  plaintiff  caused  a 
written  demand  for  such  possession  to  he  made  on  the  defend- 
ant before  commencing  this  suit,  and  that  the  defendant  re- 
fused to  surrender  such  possession). 


IN    CIVIL    ACTIONS.  143 

If  the  jury  believe,  from  the  evidence,  tliut  jjrior  and  up  to 

about  the day  of,  etc.,  the  said  plaintiff  wa^  in  the  a<,-tual 

peaceable  possession  of  said  premises  by  one  A.  B.,  his  tenant, 
and  that  at  or  about  that  time  the  said  tenant  and  the  defendant, 
for  the  purpose  of  depriving  the  plaintiff  of  such  possession,  en- 
tered into  a  collusive  agreement  or  arrangement,  by  which  the 
said  A.  B.  was  to  move  out  of  said  premises,  and  the  said  de- 
fendant was  to  immediately  move  in,  and  that  this  collusive 
arrangement  was  carried  out,  and  the  defendant  thereby  ac- 
quired the  possession  of  said  premises,  such  possession  would  be 
unlawful,  and  render  the  defendant  liable  to  be  removed  there- 
from in  an  action  of  forcible  entry  and  detainer  (provided,  a 
written  demand  was  made  by  the  plaintiff  upon  the  defendant 
for  such  possession  before  commencing  the  suit,  and  that  he  re- 
fused to  surrender  such  possession). 

What  Constitutes  Possession. — The  jury  are  instructed,  that  it  is 
not  necessary,  in  order  to  establish  possession  of  real  estate,  that 
the  claimant  should  actually  reside  upon  it  or  have  it  enclosed 
with  a  fence.  It  is  enough  if  the  party  is  doing  su(;h  acts 
thereon  as  indicate  in  an  open,  pul)lic,  visible  manner,  that  he  is 
exercising  exclusive  control  over  the  land  under  a  claim  of  right 
to  such  exclusive  possession. 

The  court  instructs  the  jury,  as  a  matter  of  law,  that  in  order 
to  constitute  possession  of  real  estate,  it  is  not  necessary  that  the 
lands  shall  be  resided  upon,  or  surrounded  by  a  fence.  Any 
act  that  will  equally  well  evince  an  intention  to  assert  and  claim 
possession,  such  as  raising  crops,  cutting  grass,  or  herding  cattle 
thereon — jirovided,  such  herding  is  open  and  exclusive — will 
constitute  such  a  possession  as  will  enable  the  party  to  maintain 
an  action  of  forcible  entry  and  detainer  against  any  person  who, 
without  the  consent  of  the  party  so  in  possession,  enters  upon 
such  possession,  and  wrongfully  and  forcibly  holds  the  same. 
Goodrich  vs.  Van  LanrUngham,  46  Cal.,  (501 ;  Bradley  vs.  West, 
60  Mo.,  59;  Pensoneaii,  vs.  Bertke,  82  III.,  161. 

Possession  Must  be  Actual  and  Real. — That  Avhen  an  actual  posses- 
sion is  relied  upon,  in  this  form  of  action,  it  must  be  open,  pub- 
lic and  exclusive,  or  it  will  not  be  sutHcient;  and  in  this  case,  if 


144  INSTRUCTIONS 

the  jury  believe,  from  the  evidence,  that  the  acts  which  are  re- 
lied upon  by  the  plaintiff  to  indicate  possession,  are  of  such  a 
character  that  they  may  as  well  indicate  acts  of  trespass  as  an 
assertion  of  ownership  or  right  to  possession,  then  they  are  nut 
sufficient  to  sustain  this  action. 

If  the  jury  believe,  from  the  evidence,  that  at  the  time  of  the 
alleged  entry  by  defendant,  the  lands  in  question  were  unen- 
closed and  uncultivated,  and  were  used  in  common  by  the 
neighborhood  generally,  and  that  the  plaintiff  only  used  them 
as  the  other  inhabitants  did,  then  these  acts  alone  would  not  in- 
dicate such  a  possession  as  is  required  to  maintain  this  action. 

What  Not  Possession. — If  the  jury  believe,  from  the  evidence, 
that  the  acts  from  which  plaintiff  claims  to  have  had  pcjssession 
of  the  premises  were  not  of  such  a  character  as  to  arrest  the 
attention  of  those  in  the  vicinity,  or  to  indicate  to  them  that  he 
claimed  exclusive  possession,  but  were  such  as  would  in  reality 
indicate  to  the  neighbors  that  his  entries  upon  the  land  were 
only  casual,  and  not  under  any  claim  of  right  to  the  exclusive 
possession  thereof,  then  the  defendant  did  not  have  such  a 
possession  as  would  sustain  this  action. 

If  the  jury  believe,  from  the  evidence,  that  the  lauds  in  ques- 
tion, at  the  time  of  the  alleged  entry  by  defendant,  were  unen- 
closed and  uncultivated,  and  that  plaintiff's  cattle  were  only 
pastured  upon  the  said  lands  occasionally,  with  other  cattle  in 
that  vicinity,  feeding  there  and  on  adjoining  lands,  and  that 
plaintiff  only  occasionally  took  some  trees  from  the  land,  such 
acts  would  not  be  sufficient  to  show  the  possession  required  to 
maintain  this  action. 

If  the  jury  believe,  from  the  evidence,  that  shortly  before 
the  alleged  entry  upon  said  premises  by  the  defendant,  and 
before  any  entry  thereon  by  the  plaintiff,  tlie  defendant  had 
been  in  possession  of  the  said  house,  and  that  when  he  left  he 
locked  the  doors,  taking  with  him  the  key  to  the  outside  door, 
and  that  he  retained  possession  of  said  key;  and  if  the  jury 
further  believe,  from  the  evidence,  that  some  time  about  the, 
etc.,  and  while  the  defendant  had  said  key  in  his  possession,  or 
under  his  control,  the  plaintiff  effected  an  entrance  to  said  house 


IN    CIVIL    ACTIONS. 


14; 


through  one  of  the  windows,  without  the  knowledge  or  consent 
of  the  defendant,  then  a  possession  tlius  acquired  by  the  plain- 
tiff is  not  sufficient  to  sustain  this  action.  Cooley  on  Torts, 
322,  323 ;  Stehdein  vs.  JIaUtead,  42  Wis.,  422. 

Burden  of  Troof. — The  court  instructs  the  jury,  that  in  this 
case  the  burden  of  proof  is  upon  the  plaintiff,  and  to  sustain 
his  action  he  must  prove,  by  a  preponderance  of  the  evidence, 
that  he  was  in  the  actual,  open  and  exclusive  possession  of  the 
premises  at  the  time  of  the  alleged  entry  by  defendant,  and 
that  he,  wliile  the  i)laintiff  was  so  in  possession,  intruded  him- 
self into  said  possession  against  the  consent  of  the  plaintiff. 
And,  if  the  jury  believe,  from  the  evidence,  that  the  plaintiff 
was  not  in  the  actual  exclusive  possession  of  the  premises  at 
the  time  of  the  alleged  entry  of  the  defendant,  the  jury  should 
find  the  issues  for  the  defendant. 


FRAUD  AND  DECEIT. 
False  Representations. — The  court  instructs  the  jury,  as  a  matter 
of  law,  that  if  one  person  represents  to  another  as  true  that 
which  he  knows  to  be  false,  and  makes  the  representation  in 
such  a  way  and  under  such  circumstances  as  to  induce  a  reasona- 
ble man  to  believe  that  the  matter  stated  is  true,  and  the  repre- 
sentation is  meant  to  be  acted  upon,  and  the  person  to  whom 
the  representation  is  made,  believing  it  to  be  true,  acts  upon  the 
faith  of  it,  and  suffers  damage  thereby,  this  is  fraud  sufficient 
to  sustain  an  action  for  deceit.  2  Hill,  on  Torts,  13S;  Cooley 
on  Torts,  175. 

Proof  of  Fraud. — The  court  instructs  the  jury,  that  while  fraud 
is  not  to  be  presumed  without  proof,  yet  fraud,  like  any  other 
fact,  may  be  proved  by  proving  circumstances  from  which  the 
inference  of  fraud  is  luitural  and  irresistible;  and  if  such  cir- 
cumstances are  proved,  and  they  are  of  such  a  character  as  to 
produce,  in  the  mind  of  the  jury,  a  conviction  of  the  fact  of 
fraud,  then  it  must  be  considered  that  fraud  is  proved.  Cooley 
on  Torts,  475;  WatJclns  vs.  Wallace,!^  Mich.,  57;  Daniel  vs. 
Baca,  2  Cal.,  32G;  Waddingham  vs.  Loker,  44  Mo.,  132; 
Strauss  vs.  Kranert,  56  111.,  254. 


146  INSTRUCTIONS 

That  while  it  is  true  the  law  never  presumes  fraud  without 
some  evidence  of  it,  yet  in  order  to  show  fraud,  direct  and 
positive  proof  is  not  required;  the  jury  may  infer  fraud  from 
the  circumstances  proved  by  the  evidence,  if,  in  the  mind  of  the 
jury,  they  are  such  as  to  show  that  a  fraud  was  practiced,  as 
charged  in  the  declaration. 

The  jury  are  instructed,  as  a  matter  of  law,  that  fraud  may 
be  proved  by  circumstantial  evidence,  as  well  as  by  direct  and 
positive  proof.  It  may  be  inferred  from  strong  presumptive 
circumstances.  And  if  the  jury  believe,  from  all  the  evidence 
in  this  case,  that  {repeating  the  charges  in  the  declaration),  then 
the  jury  should  find  for  the  plaintiff. 

Degree  of  Proof  Required. — That  while  it  is  true  that  tlie  party 
alleging  fraud  must  prove  it,  yet,  in  a  civil  action  like  this,  the 
party  alleging  the  fraud  is  not  bound  to  prove  it  beyond  a  rea- 
sonable doubt.  It  is  sufficient  if  the  fact  of  fraud  is  established, 
in  the  minds  of  the  jury,  by  the  greater  weight  of  the  evidence. 
If,  after  a  consideration  of  all  the  facts  and  circumstances 
proved,  the  jury  believe,  from  the  evidence,  the  defendant  was 
guilty  of  the  fraud,  as  charged  in  the  declaration,  and  that  the 
plaintiff  has  sustained  damage  thereby,  they  should  find  the 
issues  for  the  plaintiff. 

Representations  must  be  of  the  Past  or  Present. — The  jury  are 
instructed,  that  before  a  party  can  annul  or  treat  a  contract  as 
void,  by  reason  of  alleged  false  or  fraudulent  representations 
used  ill  procuring  it  to  be  made,  it  must  appear,  from  the  evi- 
dence, that  the  alleged  false  or  fraudulent  representations  were 
made  regarding  something  which  had  already  transpired,  or  was 
then  alleged  to  exist.  No  statement  of  one's  opinions  as  to 
what  will  or  will  not  happen,  or  exist,  in  the  future  can  affect  a 
contract  or  render  it  void.  Every  person,  in  making  a  contract, 
is  at  liberty  to  speculate  or  express  opinions  as  to  future  events, 
and  he  cannot  be  held  to  answer  for  their  truth  or  falsity.  Cooley 
on  Torts,  483,  486;  Payne  vs.  Smith,  20  Ga.,  654;  Beed  vs. 
Sidener,  32  Ind.,  373;  Bristol  vs.  Braidwood,  28  Mich.,  191; 
Tuck  vs.  Doioning,  76  111.,  71. 


IN    CIVIL    ACTIONS.  147 

Must  be  Desired  to  Injure. — The  jury  are  instructed,  that  in 
order  to  constitute  actual  fraud  there  must  be  contrivance  and 
design  to  injure  another.  Actual  fraud  is  not  to  be  presumed, 
but  it  must  be  proved  by  the  party  alleging  it,  by  a  preponder- 
ance of  evidence^  and  although  actual  fraud  may  be  proved  by 
proof  of  facts  and  circumstances  tending  to  show  fraud,  still  if 
the  motive  and  design  of  an  act  can  as  well  be  traced  to  an 
honest  and  legitimate  source  as  to  a  corrupt  or  dishonest  one, 
the  former  must  always  be  preferred. 

Injury  Must  be  Shown. — The  jury  are  instructed,  that  in  order 
that  the  defendant  may  avail  himself  of  the  defense  of  fraud, 
set  up  in  the  pleas  in  this  case,  the  jury  must  believe,  from  the 
evidence,  not  only  that  the  statements  and  representations  set 
forth  in  said  pleas  were  made,  but  also  that  such  statements  and 
representations  were  false — that  they  were  made  with  intent  to 
deceive  and  defraud  the  defendant — that  the  defendant  was  in- 
duced thereby  to  enter  into  the  contract,  and  that  he  has  sustained 
damage  by  reason  thereof.     Mitchell  vs.  Deeds,  49  111.,  410. 

The  court  instructs  the  jury,  that  a  mere  fraudulent  repre- 
sentation is  not  of  itself  actionable.  To  entitle  the  plaintiff  to 
recover,  he  must  not  only  show,  by  preponderance  of  evidence, 
that  the  representations  were  made,  and  that  they  were  false 
and  fraudulent,  but  he  must  also  show  affirmatively,  by  a  prepon- 
derance of  evidence,  that  he  has  been  injured  thereby — that  he 
is  in  some  way  placed  in  a  worse  condition  than  he  would  have 
been  had  the  statements  been  true.  Bartlett  vs.  Blaine,  S3  111.,  25. 

Scienter  Must  Appear  from  the  Evidence. — The  jury  are  instructed, 
that  while  fraud  vitiates  every  contract,  every  false  affirmation 
docs  not  amount  to  fraud.  To  constitute  fraud,  a  knowledge  of 
the  falsity  of  the  representation  must  rest  with  the  party  making 
it,  and  the  representation  must  be  made  with  the  intention  that 
the  other  party  shall  act  upon  it,  and  it  must  also  appear  that 
the  other  party  did  act  upon  the  representation,  to  his  injury. 
Walker  vs.  Hough,  59  111.,  375. 

Expression  of  Opinion. — The  jury  are  instructed,  that  a  pur- 
chaser cannot  maintain  an  action  airainst  his  vendor  for  false 


118  INSTRUCTIONS 

statements  in  regard  to  the  value  of  the  property  purchased,  or 
its  good  qualities,  or  the  price  he  has  been  offered  for  it. 

That  when  a  party,  capable  of  taking  care  of  his  own  inter- 
ests, makes  a  bad  or  hx-iing  bargain,  the  law  will  not  assist  liiin, 
unless  deceit  has  been  practiced,  against  which  ordinary  care 
could  not  protect  him.     Noetliiig  vs.  Wright,  72  111.,  390. 

The  jury  are  instructed,  that  when  j)arties  are  negotiating-  a 
trade  for  property,  which  there  is  an  opportunity  for  examining, 
each  has  a  right  to  exalt  the  value  of  his  own  property  to  the 
highest  point  the  other  party's  credulity  will  bear,  and  depre- 
ciate the  value  of  the  other's  property.  Such  boastful  assertions, 
or  highly  exaggerated  descriptions,  do  not  amount  to  fraudulent 
misrepresentation  or  deceit.  In  such  case,  the  parties  are  upon 
equal  ground,  and  their  own  judgments  must  be  their  guide  in 
coming  to  conclusions.  Cooley  on  Torts,  483;  Payne  vs.  Siaith^ 
20  Ga.,  654;  Bristol  y&.  Braidwood,  28  Mich.,  191;  Miller  ys,. 
Craig,  36  111.,  109;  Reed  vs.  Sidener,  32  Ind.,  373;  Ellis  vs. 
Andrews,  56  K  Y.,  83. 

All  statements  by  a  vendor  of  the  value  of  property  sold,  are 
not  necessarily  matters  of  opinion;  if  the  vendor,  knowing  them 
to  be  untrue,  makes  them  with  the  intention  of  misleading  the 
purchaser,  and  of  inducing  him  to  forbear  making  inquiries  as 
to  the  value  of  the  property ;  and  if  the  vendee  has  not  equal 
means  of  knowledge,  and  is  induced  by  the  statements  of  the 
vendor  to  forbear  making  inquiries  which  he  otherwise  would 
have  made,  and,  relying  on  such  statements,  is  misled,  to  his  in- 
jury, he  may  avoid  the  contract  or  recover  damages  for  the  in- 
jury.    Simar  vs.  Ganaday,  53  N.  Y.,  298. 

Representation  as  to  the  Law. — That  a  representation  as  to  what 
the  law  will  or  will  not  j^ermit  to  be  done,  or  a  representation 
rcgai-ding  the  legal  rights  of  a  party,  is  one  upon  which  the  party 
to  whom  it  is  made,  has  no  right  to  rely;  and  if  he  does  so,  it  is 
his  own  folly,  and  he  cannot  ask  the  law  to  relieve  him  from  its 
consequences.  Fish  vs.  Clelland,  33  111.,  238;  Tounsend  \&. 
Oowles,  31  Ala.,  428;  People  vs.  Supervisors,  etc.,  27  Cal.,  655; 
Rogers  vs.  Place,  29  Ind.,  577;  Upton  vs.  Trihilcoch,  91  U.  S. 
Rep.,  45-49. 


IN    CIVIL    ACTIONS.  14!) 

Mere  Silence  is  not  Fraud,  When — That  mere  silence  or  a  failure 
to  cornniiniicate  facts  within  the  seller's  knowled<^e,  is  not  sucli 
a  fraud  as  will  avoid  a  contract,  or  render  the  seller  liable.  To 
have  that  effect,  there  must  be  some  concealment,  as  by  with- 
holding information  when  asked,  or  using  some  trick  or  device 
to  mislead  the  purchaser.  The  seller  may  let  the  purchaser 
cheat  himself,  if  he  sees  fit  to  do  so,  but  he  must  not  assist  him, 
even  to  cheat  himself.     Kold  vs.  Lindley^  89  III.,  195. 

Purchaser  Knowing:  Himself  Insolvent. — The  jury  are  instructed, 
that  although  they  may  believe,  from  the  evidence,  that  the  de- 
fendant, at  the  time  he  purchased  the  goods  in  question,  was  in- 
solvent, and  knew  himself  to  be  so,  and  did  not  disclose  that  fact 
to  the  person  of  whom  he  purchased  the  goods,  still  the  defend- 
ant would  not  be  guilty  of  fraud  so  as  to  vitiate  the  contract  of 
sale;  provided,  the  jury  further  believe,  from  the  evidence,  that 
he  then  intended  to  pay  for  the  goods,  and  had  reasonable 
grounds  for  believing  that  he  would  be  able  to  do  so.  Talcott 
vs.  Henderson,  31  Ohio  St.,  162. 

Purchjise  with  Intent  not  to  Pay. — The  jury  are  instructed,  as  a 
matter  of  law,  that  in  order  to  render  a  purchase  of  property 
fraudulent  as  between  the  parties,  it  is  not  necessary  that  there 
should  have  been  any  false  representations  made  by  the  pur- 
chaser to  effect  his  purpose.  If  the  jury  believe,  from  the  evi- 
dence, and  from  the  facts  and  circumstances  proved  on  the  trial, 
that  the  purchase  in  question  was  made  by  the  purchaser,  with 
the  intention  not  to  pay  for  the  property,  then  the  transaction 
was  fraudulent  and  void,  and  vested  no  title  in  the  purchaser. 
Cooley  on  Torts,  477;  Bowen  vs.  Sc/iuler,4:l  111.,  192. 

Drawing-  Check  Without  Funds. — The  jury  are  instructed,  that 
where  a  person  draws  a  check  or  order  upon  a  pei'son  in  whose 
hands  he  has  no  funds,  and  who  he  has  no  reason  to  believe  will 
honor  the  check  or  order,  is  guilty  of  fraud;  and  if  he  thereby 
acquires  possession  of  j)roperty,  the  owner  may  repudiate  the 
sale,  and  bring  trover  or  replevin  for  the  property  so  obtained. 
Matlieios  vs.  Cowan,  59  III.,  341. 


150  INSTRUCTIONS 

Sale  of  Personal  Property— Concealed  Defects. — If  the  jury  believe, 
from  the  evidence,  that  the  phiintiff  bought  the  horse  in  ques- 
tion from  the  defendant,  and  that  the  defendant  shortly  before, 
and  at  the  time  of  the  sale,  stated  and  represented  to  the  plaintiff 
that  the  horse  was  sound  and  true,  and  that  the  plaintiif  believed 
such  statements  and  representations,  and  relied  upon  them  in 
making  the  purchase;  and  if  the  jury  further  believe,  from  the 
evidence,  that  at  the  time  such  representations  and  sale  were 
made,  the  said  horse  was  not  sound,  but  then  had  a  concealed 
disease  or  defect,  which  rendered  him  unsound,  and  which  could 
not  be  perceived  by  ordinary  skill  or  observation  at  the  time, 
but  which  was  known  to  the  defendant,  then  the  defendanit  will 
be  liable  to  the  plaintiff  for  the  damages  sustained  by  him  by 
reason  of  such  unsoundness,  if  any  has  been  shown  by  the  evi- 
dence. 

Contract  Procured  by  Fraud. — If  tlie  jury  believe,  from  the 
evidence,  that  any  untrue  statements,  as  to  the  then  market 
value  of  {live  hogs)  in  the  {Chicago)  market,  were  made  by  the 
plaintiffs,  or  by  their  agent,  as  an  inducement  to  the  defendant 
to  enter  into  the  contract  in  question,  and  that  the  defendant 
relied  upon  such  statements,  and  was  induced  thereby  to  enter 
into  the  conti'act,  then  such  contract  is  voidable  as  against  the 
defendant,  and  it  cannot  be  enforced  as  against  him. 

If  the  jury  believe,  from  the  evidence,  that  the  parties  made 
the  contract,  as  alleged  by  the  plaintiffs,  still,  if  the  jury  further 
believe,  from  the  evitlence,  that  at  the  time  of  the  making  of  the 
contract  the  plaintiffs,  or  either  of  them,  wilfully  and  know- 
ingly, by  untrue  statements,  deceived  the  defendant  in  regard 
to  the  then  market  value  of  the  property  in  question,  as  an 
inducement  to  him  to  enter  into  the  contract,  and  that  the  de- 
fendant, under  the  circumstances,  was  justified  in  relying  upon 
the  statements  made  to  him,  and  did  rely  upon  them  in  entering 
into  the  contract,  then  the  defendant  cannot  be  held  to  the  per- 
formance of  such  contract,  and  the  verdict  should  be  for  the 
defendant. 

Stating  as  True  — When  a  Party  has  no  Reason  for  Belief,  Etc. — The 

court  insti'ucts  the  jury,  that  any  wilful  misrepresentation  of  a 
material  fact,  made  with  a  design  to  deceive  another,  and  to  in- 


IN    CIVIL    ACTIONS.  151 

duc3  him  to  enter  into  a  trade  he  would  not  otherwise  make, 
will  enable  the  party  who  has  been  overreached  to  annul  the 
contract;  and  it  makes  no  difference  whether  the  party  making 
the  misrepresentation  knew  it  to  l)e  false  or  whether  he  was 
ignorant  of  the  facts  stated;  provided,  the  matter  stated  was 
material,  and  the  party  making  the  statement  stated  it  as  true, 
when,  in  fact,  he  had  no  apparently  good  reason  for  l)elieving  it 
to  be  true,  and  when  the  other  party,  under  the  circumstances 
shown  by  the  evidence,  was  reasonably  justified  in  relying  upon 
the  statement,  and  did  rely  upon  it  in  making  the  trade,  and 
was  deceived  and  injured  thereby.  Cooley  on  Torts,  500  ; 
Beebe  vs.  Ktiapp,  28  Mich.,  53,76;  Allen  vs.  Hart,  72  111., 
lO-t;  Litchfield  vs.  Hutchinson,  117  Mass.,  195. 

That  material  representations,  made  by  a  vendor,  of  matters 
assumed  by  him  to  be  within  his  personal  knowledge,  are  false 
and  fraudulent,  in  a  legal  sense,  if  made  with  intent  to  deceive 
the  vendee,  and  if  they  are  untrue,  and  are  relied  upon  by  the 
vendee  in  making  the  purchase,  to  his  damage,  although  the 
vendor  did  not  know  them  to  be  untrue.  Ind.  P.  <j&  C.  Rd. 
Co.  vs.  Tyng,  63  K  Y.,  653. 

Suit  for  Fraud— Wliat  Must  be  Proved. — The  jury  are  instructed, 
that  this  action  is  founded  upon  a  charge  of  fraud  and  deceit, 
and  in  order  to  constitute  fraud,  within  the  meaning  of  the  law, 
under  the  pleadings  in  this  case,  it  must  appear,  by  a  prepon- 
derance of  the  evidence,  that  the  defendant  intended  to  commit, 
and  did  commit  a  fraud  upon  the  plaintiff,  in  manner  and  form 
as  charged  in  his  declaration,  otherwise  he  cannot  recover,  and 
the  jury  should  find  for  the  defendant. 

That  the  plaintiff  is  not  entitled  to  recover  in  this  case  unless 
the  jury  believe,  fi'om  the  evidence,  that  the  defendant  made 
the  representations  alleged  in  the  declaration;  that  such  repre- 
sentations were  false ;  that  defendant  knew  they  were  false,  or 
had  no  apparently  good  reason  to  believe  they  were  true ;  that 
they  were  made  with  intent  to  defraud  the  plaintiff;  that  plain- 
tiff was  induced  thereby  to  make  the  trade  in  question,  and  has 
sustained  damage  by  means  thereof.  Cooley  on  Torts,  47-1; 
Eames  vs.  Morgan,  37  111.,  260. 


152  INSTRUCTIONS 

Action  Not  on  the  Contract. — The  court  instructs  the  jury,  that 
this  suit  is  not  brought  upon  the  contract  given  in  evidence,  but 
upon  the  alleged  fraud  and  deceit  set  forth  in  the  declaration, 
and  the  alleged  loss  resulting  therefrom  to  the  plaintiff;  and  if 
the  jury  believe,  from  the  evidence,  that  the  defendant  was 
guilty  of  the  fraudulent  acts  set  forth  and  charged  in  the  decla- 
ration, and  that  the  plaintiff  has  sustained  any  damage  or  loss 
by  reason  thereof,  then  the  jury  should  find  the  defendant 
guilty,  and  assess  the  plaintiff's  damages. 

Co-Defendant  Not  Guilty. — Though  the  jury  may  believe,  from 
the  evidence,  that  the  defendant,  A.  B.,  made  the  trade  in  ques- 
tion with  intent  to  defraud  the  plaintiff,  still,  if  the  jury  fur- 
ther believe,  from  the  evidence,  that  the  other  defendants,  or 
either  one  of  them,  took  no  part  in  the  trade,  and  had  no  knowl- 
edge of  such  intent,  then  the  act  of  A.  B.  would  not  bind  such 
other  defendant  or  defendants  as  did  not  take  part  in  the  trade, 
and  did  not  have  knowledge  of  such  intent;  unless  it  further 
appears,  from  the  evidence,  that  such  trade  was  made  in  the 
interest  of  such  other  defendant  or  defendants,  or  that  he  or 
thej^  have  since  ratified  the  same. 

If  the  jury  believe,  from  the  evidence,  that  the  transaction 
complained  of  took  place  l)etween  the  plaintiff  and  the  defend- 
ant, A.  B.,  and  that  the  other  defendants  had  no  j)art  in  or 
knowledge  of  the  transaction  when  it  occurred,  and  no  interest 
therein,  and  have  not  since  ratified  or  approved  of  the  act,  as 
explained  in  these  instructions,  then  such  other  defendants  cannot 
be  made  liable  for  the  acts  of  the  said  A,  B. 

Sales  —  Procnre;!  by  Fraud, — The  court  instructs  the  jury,  as  a 
matter  of  law,  that  actual  fraud  vitiates  and  will  render  void,  at 
the  election  of  the  party  injured,  all  contracts;  and  a  fraudulent 
purchaser  acquires  no  title  to  goods  procured  through  fraudulent 
rej)resentation. 

And  if  a  jiurchase  of  goods  is  effected  by  means  of  false  and 
fraudulent  rej^resentations  on  the  part  of  the  purchaser,  known 
by  liim  to  be  false,  and  whicli  are  relied  upon  by  the  seller,  and 
but  for  which  he  would  not  have  made  the  sale,  then  the  seller 


IN    CIVIL    ACTIONS.  153 

does  not,  as  against  tlie  purcliascr,  lose  his  title  to  the  goods, 
and  he  may  l)ring  tn^ver  or  replevin  for  them  against  the  pur- 
chaser, without  iirst  making  a  demand  for  them. 

And  in  such  a  case,  if  the  purchaser  has  given  a  note  or  notes 
for  the  price  of  the  goods,  the  seller  may  bring  his  suit  without 
inaking  a  previous  tender  of  the  notes;  provided,  the  notes  are 
produced  at  the  trial  to  be  surrendered  to  the  defendant.  Cog- 
kill  vs.  Boring^  15  Cal.,  213;  Thurston  vs.  Blanchard,  22 
Pick.,  18;  Nichols  vs.  Michael,  23  N.  Y.,  2G4. 

Right  to  Rescind. — The  court  instructs  the  jury,  that  the  law  is, 
that  where  a  person  is  induced  to  part  with  his  property,  under 
a  contract  procured  by  fraud,  on  discovering  the  fraud  he  may 
avoid  the  contract  and  claim  a  return  of  the  property.  He  has 
his  election  to  affirm  or  disaffirm  the  contract,  but  if  he  dis- 
affirms it,  he  must  do  so  at  the  earliest  practicable  moment  after 
the  discovery  of  the  fraud.  Cooley  on  Torts,  503 ;  Cochran  vs. 
Stewart,  21  Minn.,  435  ;  Hall  vs.  Fullerton,  69  111.,  448  ; 
Wright  vs.  Pelt,  36  Mich.,  213;  Pear  soil  vs.  Chapin,  44  Penn. 
St.,  9. 

Sale  not  Void,  but  Yoidable. — That  fraud,  in  the  sale  or  purchase 
of  personal  property,  does  not  render  the  transaction  void,  but 
only  voidable,  at  the  option  of  the  party  defrauded.  The 
vendor,  when  defrauded,  may  either  avoid  the  contract,  or  he 
may  ratify  it,  while  the  property  remains  in  the  hands  of  the 
purchaser;  but  after  the  property  has  passed  into  the  hands  of 
a  l)07ia  fide  purchaser  from  the  fraudulent  vendee,  the  seller 
cannot  reclaim  the  property.  Mich.,  etc.,  Rd.  Co.  vs.  Phillijps, 
60  IlL,  190. 

Contract  May  be  Ratified,  How. — The  court  instructs  the  jury, 
that  vww  wlien  a  sale  of  goods  is  procured  ])y  the  fraud  of  the 
purchaser,  the  contract  of  sale  is  not  absolutely  void;  but  the 
contract  may  be  either  avoided  or  ratified  by  the  seller;  and  if 
the  seller  does  not,  within  a  reasonable  time  after  discovering 
the  fraud,  do  some  act  showing  an  intention  to  rescind  the  sale, 
he  will  be  held  in  law  to  have  ratified  the  sale. 


154  INSTEUCTIONS 

Where  a  sale  of  goods  is  procured  by  the  fraudulent  repre- 
sentations of  the  purchaser,  the  contract  of  sale  is  not  absolutely 
void,  but  it  may  be  either  avoided  or  ratified  by  the  seller. 

And  in  this  case,  if  the  jury  believe,  from  the  evidence,  that 
the  plaintiffs,  after  they  discovered  the  fraud  claimed  by  them 
(brought  a  suit  against  the  purchaser  for  the  price  of  the 
goods  sold),  tliat  would  be  a  ratification  of  the  sale,  and  the 
plaintiffs  would  not  now  be  permitted  to  claim  the  goods,  as 
against  the  creditors  of  the  purchaser,  who  had  had  an  execution 
levied  upon  them 

Where  a  party  undertakes  to  rescind  the  contract  of  sale,  on 
the  ground  of  the  fraud  of  the  other  party,  he  must,  as  soon  as 
the  fraud  is  discovered,  take  all  reasonable  measures  to  rescind 
it;  and  if  he  undertakes  to  rescind  the  contract,  he  must  rescind 
the  whole  of  it,  and  if  he  has  received  any  money,  or  other 
valuable  thing  under  the  contract,  he  must  return,  or  offer  to 
return  the  same,  so  as  to  place  both  parties  in  the  same  condition 
that  they  were  in  before  the  sale.  Cooley  on  Torts,  504;  2  Hill, 
on  Torts,  141;  BahcocJc  vs.  Case,  61  Penn.  St.,  427;  Jewett  vs. 
Petit,  4  Mich.,  508;  Coghill  vs.  Boring,  15  Cal.,  213. 

What  is  a  Ratification. — The  jury  are  instructed,  that  when  a 
party  has  been  induced  to  sell  property  on  credit  by  fraudulent 
means,  he  has  his  election  either  to  affirm  the  sale  or  to  disaffirm 
it  on  the  ground  of  fraud;  and,  in  such  a  case,  if  the  seller, 
with  a  knowledge  of  all  the  material  facts  affecting  his  interest, 
takes  any  steps  to  enforce  the  payment  of  the  j)i'ice  agreed 
upon,  or  puts  it  out  of  his  power  to  restore  the  other  party,  as 
nearly  as  possible,  to  the  same  position  he  was  in  before  the 
sale,  he  will  be  held  to  have  elected  to  affirm  the  sale. 

[Sec  Ratification.] 

Innocent  Purcliaser  from  Frandulent  Vendee. — The  court  instructs 
the  jury,  that  when  a  j)erson  who  has  i3urchased  goods  and  obtained 
possession  of  them  by  false  and  fraudulent  representations,  sells 
them  to  an  innocent  purchaser  for  value  before  they  are 
reclaimed  by  the  vendor,  such  innocent  purchaser  will  acquire 
a  valid  title  to  the  goods.  Cochran  vs.  Stevjart,  21  Minn.,  435; 
Ohio,  etc.,  Rd.  Co.  vs.  Kerr,  49  111.,  458;  2  Hill,  on  Torts,  143. 


IN    CIVIL    ACTIONS.  155 

That  wlicn  a  party  sells  goods  and  delivers  them  to  the  pur- 
chaser under  circumstances  which  would  authorize  him  to  rescind 
the  sale  as  against  the  purchaser,  yet  if  before  the  sale  is  re- 
scinded, the  purchaser  sell  them  or  pledge  them  as  security  for 
an  advance  of  money,  to  an  innocent  j)arty,  without  notice  of  the 
fraud,  such  innocent  party  will  hold  the  goods  as  against  the 
original  owner. 

Purchaser  -witliout  Notice,  Etc. — The  jury  are  further  instructed, 
that  to  entitle  the  plaintiff  to  reclaim  the  goods  from  the  defendant, 
the  jury  must  believe,  from  the  evidence,  that  M.  obtained  the 
goods  in  controversy  from  the  plaintiff'  by  the  means  of  false 
and  fraudulent  representations,  and  that  the  defendant,  at  or 
before  the  time  he  received  them  from  M.,  had  notice  of  the 
manner  in  which  M.  had  obtained  them  from  the  i)laintiff,  or 
that  defendant  received  them  from  M.  without  any  valuable 
consideration;  pi-ovided,  the  jury  believe,  from  the  evidence, 
that  M.  purchased  the  goods  from  the  plaintiff  and  afterwards 
transferred  them  to  the  defendant. 

The  court  instructs  the  jury,  that  where  personal  property  is 
sold,  and  no  time  of  payment  is  fixed  by  the  contract,  then  the 
law  will  imply  that  payment  was  to  be  made  before  delivery, 
and  before  the  title  would  vest  in  the  purchaser;  but  when  a 
purchaser  acquires  possession  of  property  before  payment,  by 
fraudulent  means,  and  sells  it  to  a  hona  fide  purchaser,  witliout 
notice,  for  a  valuable  consideration,  before  the  first  sale  is  avoided 
or  the  property  reclaimed,  then  the  hona  fide  purchaser  will 
hold  the  2:)roperty  as  against  the  original  owner. 

Transferred  in  Payment  of  Debt. — That  where  a  person  purchases 
and  o])tains  the  possession  of  goods  by  fraudulent  represent- 
ations, and  then  sells  and  delivers  them  to  his  creditor,  in  pay- 
ment of  a  preexisting  debt,  and  the  creditor  accejits  them,  hona 
fide,  and  without  any  notice  of  the  fraud  of  his  vendor,  such 
creditor  is  a  purchaser  for  a  valuable  consideration,  and  in  hiw 
will  be  protected  as  such  against  any  claim  of  the  origiiuil 
owner,  to  the  same  extent  as  if  he  had  paid  a  new  consideration 
for  the  goods,  at  the  time  he  purchased  them. 


156  INSTRUCTIONS 

The  jury  are  further  instructed,  that  if  they  believe,  from 
the  evidence,  that  M.  purchased  the  goods  from  the  phiintiff,  on 
credit,  by  means  of  the  alleged  fraud,  and  that  the  defendant, 
in  good  faith,  received  the  goods  from  M.  in  payment  or  part 
payment  of  a  preexisting  debt,  then,  to  entitle  the  plaintiff  to 
a  verdict  for  the  goods  as  against  the  defendant,  the  jury  must 
further  believe,  from  the  evidence,  that  the  defendant,  when  he 
received  the  goods,  had  notice  that  M.  obtained  them  by  means 
of  the  fraud  alleged. 

If  the  jury  believe,  from  the  evidence,  that  the  defendant 
bought  the  goods  in  controversy  from  M.  in  good  faith,  in  pay- 
ment, or  in  part  payment,  of  a  debt  which  M.  owed  defendant, 
and  without  any  knowledge  or  notice  of  the  means  by  which  M. 
obtained  them  from  the  plaintiff,  then,  on  the  question  of  own- 
ership of  the  goods,  the  jury  should  find  for  the  defendant,  even 
though  the  jury  should  further  find,  from  the  evidence,  that  M. 
had  obtained  the  goods  from  the  plaintiff  by  means  of  false  and 
fraudulent  representations,  as  alleged.  Butters  vs.  Haugh- 
wout,  42  111.,  18.  {On  this  point  the  decisions  in  different 
states  are  not  uniform.) 

Attaching- or  Execution  Creditor. — The  court  instructs  the  jury,  as 
a  matter  of  law,  that  where  a  party  sells  goods  and  delivers 
them,  under  circumstances  which  would  authorize  him  to  rescind 
the  sale  as  against  the  purchaser,  as  explained  in  these  instruc- 
tions, he  will  have  the  same  right,  as  against  an  attaching  or 
execution  creditor  of  the  purchaser.  Schweizer  vs.  Tracy,  76 
111.,  345. 

Purchaser  Must  Exercise  Reasonable  Caution, — A  hona  fide  pur- 
chaser from  the  fraudulent  vendee  of  personal  property,  before 
the  defrauded  vendor  has  avoided  his  contract  of  sale,  will  get 
a  good  title  to  the  property. 

The  jury  are  instructed,  that  the  law  imposes  upon  one  pur- 
chasing personal  property,  that  degree  of  caution  and  diligence, 
in  ascertaining  the  title  of  his  vendor,  which  ordinarily  prudent 
business  men  usually  exercise  under  like  circumstances,  and  it 
charges  him  with  constructive  notice  of  such  facts  only,  as  by  the 


IN    CIVIL    ACTIONS,  157 

exercise  of  such  caution  and  diligence  he  wouhl  prohably  have 
discovered.      Cochran  vs.  Stewart, ''ll  Minn.,  435. 

The  jury  are  instructed,  that  every  false  affirmation  d(jes  not 
amount  to  a  fraud.  If,  by  an  ordinary  degree  of  caution,  the 
party  complaining  could  have  ascertained  the  falsity  of  the  rep- 
resentations complained  of,  then  such  party  is  not  entitled  to  a 
verdict;  and  in  this  case,  to  entitle  the  plaintiff  to  a  verdict,  the 
jury  must  believe,  from  the  evidence,  not  only  that  the  repre- 
sentations complained  of  were  made,  but  also  that  they  were 
made  under  circumstances  calculated  to  deceive  a  person  acting 
with  reasonable  and  ordinary  prudence  and  caution;  and  in  de- 
termining this  question,  the  jury  should  consider  all  the  circum- 
stances under  which  the  alleged  representations  appear,  fi-om  the 
evidence,  to  have  been  made,  and  whether,  under  the  circumstances, 
the  representations  were  such  as  a  person  of  common  and  ordinary 
prudence  would  or  should  have  relied  upon  or  such  as  would 
l)e  likely  to  mislead  such  a  person.  Eames  vs.  Morgan,  37 
111.,  260. 

Only  Boiiiid  to  Exercise  Reasonable  Caution. — The  jury  are  in- 
structed, that  althougli  a  party  to  a  contract  is  bound  to  exercise 
reasonable  care  and  caution  to  prevent  being  defrauded,  .still,  if 
the  party  with  whom  he  is  dealing  makes  use  of  such  false  and 
fraudulent  statements,  representations  and  acts,  with  respect  to 
a  material  inducement  to  the  contract,  as  are  caculated  to  mis- 
lead a  person  acting  with  common  prudence  and  reasonable 
discretion,  and  such  person  is  thereby  induced  to  enter  into  a  con- 
tract, or  to  part  with  property  which  he  would  not  otherwise  have 
done,  then  the  party  making  use  of  such  false  and  fraudulent 
statements  representations  or  acts,  cannot  be  heard  to  say  that 
the  person  so  deceived  and  misled,  did  not  make  such  inquiries 
as  might  have  resulted  in  a  discovery  of  the  falsity  of  the  repre- 
sentations. 


158  INSTRUCTIONS 


FRAUD   AS   AGAINST   CREDITORS. 

Note. — In  many  of  the  states,  the  retaining  of  the  possession  of  personal 
property,  by  the  vendor,  after  an  absolute  sale,  is  held,  in  favor  of  the  credit- 
ors of  the  vendor,  to  be  prima  facie,  or  presumptive  evidence  of  a  fraudulent 
intent  on  the  part  of  the  vendor,  known  to  and  participated  in  by  the  vendee; 
but  such  presumption  may  be  rebutted  by  evidence  of  good  faith.  In  some 
of  the  states  such  retaining  of  possession  is  held  to  be  conclusive  evidence 
of  fraud,  in  favor  of  the  creditors  of  the  vendor,  and  not  subject  to  explana- 
tion. In  other  states  the  matter  is  regulated  by  statute.  Bump  on  Fraud. 
Conv.,  60,  and  the  cases  there  cited. 

Sale  with  Intent  to  Defraud  Creditoi-s. — The  jury  are  instructed, 
that  every  sale  or  conveyance  of  property,  made  by  the  parties 
with  intent  to  hinder,  delay  or  defraud  creditors  in  the  collection 
of  their  debts,  is  fraudulent  and  void  as  to  such  creditors,  whether 
such  sale  or  assignment  is  made  with  or  without  a  valuable  con- 
sideration therefor. 

Fraudulent,  Though  for  a  Good  Consideration,  Wlien.-^— That  a  con- 
veyance or  sale  of  j)roperty  made  with  the  intent,  on  the  part  of 
the  vendor  to  delay,  hinder  or  defraud  a  particular  creditor  in 
the  collection  of  his  debt,  is  void  as  against  all  the  creditors  of 
the  vendor,  if  the  intent  be  known  to,  or  participated  in  by 
the  vendee,  although  made  for  a  good  and  valuable  consideration. 
Bump  on  Fraud.  Conv.,  198;  Nelson  vs.  Smith,  28  111,,  495; 
Chajypel  vs.  Clapp,  29  la.,  191;  Harrison  vs.  Jaquess,  29  Ind., 
208;  Castro  vs.  lilies,  22  Texas,  479;  Gardinier  vs.  Otis,  13 
Wis.,  460. 

The  jury  are  instructed,  that  if  a  purchaser  knows  that  the 
vendor  has  a  fraudulent  purpose  in  making  the  sale,  and  buys 
with  that  knowledge,  he  is  not  a  ho7ia  fide  purchaser. 

Must  be  a  Change  of  Possession— Fraud  per  se. — The  court  in- 
structs the  jury,  as  a  matter  of  law,  that  any  sale  or  conveyance 
of  personal  property,  to  be  valid,  as  against  the  creditors  of  the 
seller,  must  be  accompanied  and  followed  by  a  change  in  the 
possession  of  such  propert}^,  from  the  seller  to  the  purchaser,  so 
far  as  the  situation  of  the  parties  and  the  character  of  the  prop- 
erty will  reasonably  admit  of  a  change  of  possession. 


IN    CIVIL    ACTIONS.  159 

That  a  change  of  tlie  possession  of  personal  property  upon  a 
sale  thereof,  must  not  be  merely  nominal  or  momentary;  it  must 
be  real,  actual  and  open,  and  such  as  may  be  public^ly  known. 
so  far  as  the  circumstances  will  reasonably  admit  of.  A  con- 
tinued possession  by  tlie  vendor  of  personal  property,  as  osten- 
sible owner,  after  an  absolute  sale,  renders  the  sale  fraudulent 
and  void,  as  against  creditors  of  the  vendor.  Wright  vs.  Grover, 
27  111.,  42G;  Sutto7i\s.  Ballou,  46  Iowa,  517;  Cater  vs.  Col- 
lins, 2  Mo.,  App.  225. 

That  any  sale  of  personal  property,  when  it  is  permitted  to 
remain  with  the  vendor,  if  it  is  of  that  character  of  property 
that  it  is  capable  of  being  removed,  or  of  having  a  change  in 
the  possession  of  it  made,  is  fraudulent  in  law,  as  to  creditors 
and  subsequent  purchasers,  notwithstanding  the  sale  may  be  in 
good  faith,  and  for  a  valuable  consideration.  Ticknor  vs. 
McClelland,  84  III,  471. 

Must  be  Outward,  Visible  Signs  of  Change  of  Possession. — The  jury 
are  instructed,  that  wdien  persons  are  doing  business  as  a  firm, 
and  in  the  way  of  their  business,  have  in  their  possession  a  stock 
of  goods  in  store,  and  while  they  are  so  doing  business,  they  con- 
tract debts,  then  no  sale  or  assignment  of  such  stock  of  goods,  or 
any  interest  therein,  will  be  valid,  as  against  the  creditors  of  the 
firm,  unless  the  creditors  have  actual  notice  of  the  sale,  or  there 
is  such  a  change  in  the  j)ossession  of  the  goods,  and  of  the  out- 
ward and  visible  signs  of  ownership,  as  would  indicate  to  the 
public,  and  to  those  dealing  with  the  stock,  that  such  sale  or 
transfer  had  been  made. 

If  the  jury  believe,  from  the  evidence,  that  some  time  about 

the  mouth  of J.  and  B.   commenced  to  do  business  as 

partners,  and,  in  the  way  of  their  business,  had  a  stock  of  goods 

at ,  and  that  while  they  were  so  doing  business,  that  firm 

became  indebted  to  Iv.  upon  the  note  introduced  in  evidence, 
and  that  afterwards  J.  sold  out  all  his  interest  in  the  stock  of 
goods  to  his  partner,  such  a  sale  would,  in  law,  be  fraudulent 
and  void  as  against  K.,  unless  the  jury  believe,  from  the  evidence, 
that  K,  had  actual  notice  of  the  sale,  or  unless  the  sale  was  ac- 
companied and  followed  by  all  such  changes  in  the  possession  of 


ICO  INSTRUCTIONS 

the  stock  of  goods,  and  in  the  manner  of  doing  business  in  con- 
nection therewith,  as  would,  so  far  as  the  circumstances  w^ould 
reasonably  admit  of,  notify  the  public  and  persons  dealing  with 
the  firm,  and  with  the  stock  of  goods,  that  such  sale  had  been 
made. 

The  jury  are  instructed,  as  a  matter  of  law,  that  any  sale  or 
assignment  of  personal  property,  when  the  possession  of  the 
property  is  permitted  by  the  purchaser  to  remain  in  the  seller, 
is  fraudulent  and  void  as  against  the  creditors  of  the  seller;  and 
where  the  nature  of  the  property  and  the  situation  of  the  parties 
will  admit  of  it,  in  order  to  constitute  a  change  of  possession, 
there  must  be  some  outward,  open,  visible  change  in  the  relation 
of  the  parties  to  the  goods,  indicating  a  change  in  the  possession 
that  could  be  seen  and  known  by  persons  dealing  with  the  goods. 

If  the  jury  believe,  from  the  evidence,  that  before  and  up  to 
the  time  of  the  alleged  sale  from  A.  B.  to  the  plaintiff,  A.  B. 
had  been  engaged  in  business  as  a  retail  merchant,  and  that  the 
goods  in  question,  or  any  of  them,  were  a  part  of  his  stock  in 
trade,  and  after  the  alleged  sale  A.  B.  and  his  former  clerk 
remained  in  charge  of  tlie  store,  and  that  nothing  was  done  by 
the  parties  to  notify  the  public  that  there  had  been  a  sale,  then 
the  sale  would,  in  law,  be  fraudulent  and  void  as  against  the 
creditors  of  A.  B. ;  and  if  the  jury  further  believe,  that  A,  B. 
was  indebted  to  the  said  K.,  before  and  at  the  time  of  the  alleged 
sale,  then  the  property,  while  so  remaining  in  the  possession  of 
A.  B.,  could  lawfully  be  taken  on  an  attachment  writ,  or  execu- 
tion, issued  in  favor  of  the  said  Iv.,  and  against  the  said  A.  B. 

That  when  a  person  engaged  in  business  as  a  retail  merchant, 
sells  out  his  business  and  entire  stock  in  trade  to  another,  in 
order  to  render  the  sale  valid,  as  against  the  creditors  of  the 
seller,  it  is  necessary  that  there  be  an  actual  change  of  the  pos- 
session of  the  property  sold,  from  the  former  owner  to  the  pur- 
chaser, attended  by  such  outward  and  visible  signs  of  a  change 
of  possession  as  could  be  seen  and  known  to  the  public,  or  to 
persons  dealing  with  the  goods. 

The  court  instructs  the  jury,  that  while  a  sale  of  property 
may  be  good,  as  between  the  vendor  and  vendee,  without  actual 
delivery,  yet,  to  make  such  sale  valid  and  binding,  as  against  the 


IN    CIVIL    ACTIONS.  101 

creditors  of  the  vendor,  there  must  be  a  delivery  of  tlic  property 
so  sold;  and  sncdi  delivery  must  be  an  actual  manual  delivery, 
when  the  pro[)erty  is  susceptible  of  it;  and  when  the  property  is 
so  heavy  or  bulky  that  manual  delivery  is  impracticable,  theii 
there  must  be  some  outward  public  act  done  by  way  of  deliver- 
ing the  possession,  which  shows  an  intention  by  the  parties  to 
change  the  possession  from  the  seller  to  the  buyer,  so  far  as  it 
can  reasonably  be  done  under  the  circumstances  of  the  case. 

Priority  of  Possession  Under  Execution. — If  the  jury  believe,  from 
the  evidence,  that  at  the  time  of  the  alleged  purchase  of  the 
property,  there  was  no  act  done  by  the  seller  towards  turning 
over  the  property  to  the  plaintiff,  and  no  act  done  by  the  plain- 
tiff towards  taking  possession  of  the  property,  then,  as  against 
the  execution  creditors  of  the  seller,  such  a  sale  would  be  fraud- 
ulent and  void  in  law,  and  the  execution  introduced  in  evidence, 
if  received  by  the  officer  {or  levied  upon  the  property)  before 
any  acts  were  done  towards  changing  the  possession  of  it,  would 
hold  the  property  as  against  the  plaintiff. 

Retaining  Possession— Presumptive  Evidence  of  Fraud. — The  court 
instructs  the  jury,  that  the  law  presumes  every  sale  of  personal 
property  to  be  fraudulent  and.  void,  as  against  the  creditors  of 
the  seller,  unless  a  change  of  possession  of  the  property,  from 
the  seller  to  the  purchaser,  accompanies  and  follows  the  sale; 
and  this  change  must  be  an  open,  visible  change,  manifested  by 
such  outward  signs  as  render  it  evident  to  persons  dealing  with 
the  property,  that  the  possession  of  the  former  owner,  as  sucJi, 
has  ceased. 

In  this  case,  although  the  jury  may  believe,  from  the  evidence, 
that  the  plaintiff  and  the  said  A.  B.,  before  the  execution,  intro- 
duced in  evidence  in  this  case,  was  issued  and  received  by  the 
officer  {or  levied  upon  the  property),  went  thi'ough  with  the 
forms  of  a  sale  from  the  latter  to  the  former;  still,  if  the  jury 
further  believe,  from  tlie  evidence,  that  there  was  no  apparent 
change  in  the  possession  of  the  property  accompanying  such 
sale,  then  the  law  presumes  the  sale  to  have  been  made  with  a 
fraudulent  intent  on  the  part  of  the  seller,  known  to  and  par- 
ticipated in  by  the  plaintiff,  and,  in  such  case,  the  burden  of 

11 


1G2  INSTKUCTIONS 

proof  is  on  tlio  plaintiff  to  show  the  good  faith  of  the  transaction, 
by  a  preponderance  of  evidence. 

The  jury  are  further  instructed,  as  a  matter  of  law,  that  where 
a  sale  of  personal  property  is  alleged  to  have  been  made,  and 
there  is  no  change  in  the  possession  of  the  property  accompany- 
ing or  following;  the  sale,  then  the  law  presumes  that  such  sale 
was  made  with  intent  to  hinder,  delay,  or  defraud  the  creditors 
of  the  seller;  and  to  render  such  a  sale  valid  and  binding,  as 
against  such  creditors,  the  burden  of  proof  is  on  the  purchaser 
to  show,  by  a  preponderance  of  evidence,  that  the  sale  was  hona 
fide  and  honest,  and  not  designed  as  a  mere  trick  to  cover  up 
the  property. 

Good  Faith  a  Question  for  the  Jury,  When. — The  jury  are  instructed, 
that  although  the  law  presumes  every  sale  of  pei'sonal  property, 
where  the  possession  of  the  property  is  allowed  to  remain  with 
the  seller,  to  be  fraudulent  and  void,  as  against  the  creditors  of 
the  seller,  still,  this  jDresumption  of  law  is  not  conclusive  on  the 
parties,  and  whether  the  sale  was,  in  fact,  made  in  good  faith,  is 
a  question  to  be  determined  by  the  jury,  from  a  consideration  of 
all  the  evidence  in  the  case. 

And  in  this  case,  if  the  jury  believe,  from  all  the  facts  and 
circumstances  attending  the  sale  in  question,  as  shown  by  the 
evidence,  that  the  sale  was  hona  fide,  and  for  a  valuable  consider- 
ation, and  not  made  with  intent,  or  for  the  purpose  of  hindering, 
delaying,  or  defrauding  the  creditors  of  the  said  A.  B.,  then 
such  a  sale  is  as  valid  and  binding  as  though  the  possession  of 
the  property  had  passed  to  the  plaintiff  at  the  time  of  the  sale. 
[See  Part  I.,  Sees.  14  and  15.] 

Possession  Evidence  of  Ownership. — The  court  instructs  the  jury, 
that  possession  of  personal  pro23erty  vs,  prima  facie  evidence  of 
ownership,  if  there  are  no  circumstances  accompanying  the  pos- 
session to  rebut  the  presumj)tion  of  ownership;  and  if  the  jur}' 
believe,  from  the  evidence,  that  the  plaintiff  had  been  in  posses- 
sion of  the  property  in  question  for months,  prior  and  up 

to  the  time  it  was  taken,  and  under  circumstances  indicating 
ownership  in  him,  then  it  is  incumbent  upon  the  defendant  to 


IX    CIVIL    ACTIONS.  1G3 

sliow,  by  a  preponderance  of  tcstiinony,  that  tlic  title  ^vas  not  in 
the  phiiiitilt",  and  indess  he  has  done  so,  they  should  find  for  the 
phiintiff,  as  to  the  ownership  of  the  property.  Berfjen  vs.  Rigyn, 
34  111.,  170. 

Possession  not  Evidence  of  Ownership,  Wlien. — The  jury  arc  in- 
structed, that  although  it  is  a  general  rule  of  law,  that  possession 
of  personal  property  \&^rima  facie  evidence  of  title  in  the  per- 
son in  possession,  still  the  possession  may  be  accompanied  by 
such  circumstances  as  to  rebut  such  presumption;  and  so  in  this 
<;ase,  although  the  jury  may  believe,  from  the  evidence,  that  the 
defendant  was  in  jjossession  of  the  property  when,  etc.,  still,  if 
the  jury  further  find,  from  the  evidence,  that  such  possession 
was  attended  or  accompanied  by  such  circumstances  as  rebut  the 
presumption  of  ownership  arising  from  such  possession,  then 
such  possession  is  not,  of  itself  alone,  even  prima  facie  evidence 
of  ownership  in  the  defendant. 

Only  Siicli  Clian^e  Required  as  can  Reasonably  be  Made. — In  deter- 
mlning  what  it  takes  to  constitute  a  delivery  and  change  of  pos- 
session of  personal  property  upon  a  sale  of  it,  the  jury  should  take 
into  consideration  the  character  of  the  property,  and  the  situa- 
ti(m  of  the  parties  at  the  time  of  the  sale;  and  in  this  case,  if  the 
jury  find,  from  the  evidence,  that  the  plaintiff  purchased  the 
l)roperty  in  question  in  good  faith,  and  for  a  valuable  considera- 
tion, before  the  execution,  introduced  in  evidence,  came  into  the 
hands  of  the  o^aev  {or  was  levied  upon  the  property), t]vAi  plaintiff 
had  done  everything  which  could  reasonably  be  done,  under  the 
circumstances,  by  way  of  taking  possession  of  the  property,  un- 
der the  sale  to  him,  then  the  property  would  not  be  liable  to  be 
taken  on  the  execution.  Bump  on  Fraud.  Conv.,  165 ;  Cartright 
vs.  Fhcenix,  7  Cal.,  281;  Allen  vs.  Smith,  10  Mass.,  308;  Chase 
vs.  Ralston,  30  Penn.  St.,  539. 

That  the  rule  of  law  requiring  a  change  of  possession  of  per- 
sonal property  u^^on  the  sale  of  it,  in  order  that  the  sale  shall  not  be 
fraudulent  as  against  creditors,  only  requires  such  a  change  of 
possession  as  the  articles  sold  will  conveniently  and  reasoiuibly 
admit  of,  and  in  the  case  of  heavy  and  cumbersome  articles,  an 
actual  delivery  of  any  essential  part  thereof,  with  the  inteiition 


104  INSTRUCTIOXS 

of  Jelivering  tlie  whole,  is  iu  law  equivalent  to  a  delivery  of  the 
Avhole  article  sold.     1  Pars,  on  Cout.,  44:3. 

The  court  instructs  the  jur}^,  that  although  a  delivery  of  per- 
sonal property  sold  is  necessary  to  pass  tlie  title  thereto,  as 
against  the  creditors  of  the  seller,  yet  such  delivery  need  not 
necessarily  be  an  actual  delivery;  but  anything  which  clearly 
shows  a  surrender  of  ownership  by  the  seller,  and  an  assumption 
of  ownershiiD  by  the  purcliaser,  accompanied  by  such  circum- 
stances as  would  reasonably  advise  the  world  of  such  change  of 
ownersliij^,  is  all  that  is  necessary  on  that  j^oint. 

Property  in  Possession  of  Third  Person. — The  court  instructs  the 
jury,  that  where  personal  property  is  sold,  which,  at  the  time  of 
the  sale,  is  in  the  actual  possession  or  under  the  control  of  a  third 
person,  no  other  delivery  of  such  property  is  necessary,  than  tliat 
the  seller  and  purchaser,  together  with  such  third  person,  should 
agree  that  such  third  person,  should  tliereafter  keep  possession 
of  the  property  for  the  purchaser,  and  he  does  so  keep  possession. 

Symbolical  Delivery. — The  jury  are  instructed,  that  the  transfer 
of  a  bill  of  lading,  on  a  sale  or  pledge  of  the  property  shipped, 
is  a  symbolical  delivery  of  the  property  to  the  purchaser  or 
j^ledgee,  and  if  proved,  is  a  good  delivery  of  the  property  as 
against  the  creditors  of  the  shippers.  1  Pars,  on  Cout.,  443; 
Jfich.  Cent.  Rd.  Co.  vs.  Phillips,  GO  111.,  190. 

Possession  by  Agent. — That  a  party  may  be  in  possession  of  j^er- 
sonal  property,  by  his  agent  as  well  as  by  himself,  and  if  tlie 
goods  are  sold  in  good  faith,  and  for  a  valuable  consideration, 
and  the  possession  is  delivered  to  the  purchaser,  it  is  not  neces- 
sary that  he  should  remain  in  the  actual  possession  of  the  prop- 
erty to  guard  his  title;  but  such  possession  may  be  by  an  agent, 
and  such  agent  may  be  the  seller  of  the  property,  if  the  posses- 
sion is  such  as  reasonably  to  advise  the  creditors  of  the  change 
in  the  title  of  the  ]Droperty.      Warner  vs.  Carleton,  22  111.,  415, 

Possession  of  Growing  Crops. — The  court  instructs  the  jury,  that 
upon  the  sale  of  personal  property,  where  the  goods  are  purchased, 
and  are  incapable  of  being  handed  over  from  one  to  another, 


IN    CIVIL    ACTIONS. 


there  need  not  1)C  a  manual  delivery;  and  in  the  ease  of  the  sahj 
of  standing  crojis,  the  possession  will  1)0  in  the  vendee  until  it  i> 
time  to  harvest  them,  and  until  then  he  is  not  required  to  take 
manual  or  actual  possession  of  them.  Tlclaior  \'s>.  McClelland, 
84  in.,  471. 

Temporary  Possession  of  Vendee. — If  the  jury  believe,  from  the 
evidence,  that  the  plaintiff  purchased  the  property  in  good  faith, 
and  paid  a  valuable  consideration  therefor,  and  then  took  actual 
possession  of  the  property  under  such  sale,  and  continued  such 
possession  long  enough  and  under  such  circumstances  as  to  ap- 
prise the  public  generally  of  a  change  in  the  ownership  of  the 
property,  then,  although  the  jury  should  find,  from  the  evidence, 
that  the  plaintiff  loaned  the  property  temporarily  to  the  said  A. 
B.,  this  would  not  alone  render  the  sale  fraudulent  or  void  {or 
not  presumptive  evidence  of  a  fraudulent  sale,  etc.)  as  against 
the  creditors  of  the  said  A.  B.  Cunningham  vs.  Haimilton, 
25  IlL,  228. 

A  Person  Inilebted  m-iy  Sell  his  Property. — That  a  party,  though  in 
debt,  may  sell  his  property  to  anyone  he  pleases,  if  for  an 
honest  and  fair  consideration,  and  no  lien  exists  to  forbid  it.  If 
the  transaction  be  an  honest  one,  made  in  good  faith,  and  for  an 
adequate  consideration,  it  matters  not  how  many  creditors  may 
be  prevented  thereby  from  reaching  the  property. 

The  jury  are  instructed,  that  although  a  sale  of  a  debtors 
property  may  have  the  effect  to  hinder  and  delay  his  creditors 
in  the  collection  of  their  debts,  this  fact  alone  will  not  render 
the  sale  fraudulent  or  void ;  a  debtor,  however  insolvent,  may 
lawfully  sell  his  property,  even  for  less  than  its  worth,  if  it  is  done 
with  a  honafiie  intention  of  applying  the  proceeds  in  discharge 
of  any  legal  lialjilit}'.  Bump  on  Fraud.  Conv.,  44;  Nelson  vs. 
Smith,  28  111.,  495. 

The  jury  are  instructed,  that  a  sale  of  property  in  good  faith, 
for  a  valuable  consideration,  when  there  is  a  delivery  of  the 
property  sold,  passes  the  title  to  the  purchaser,  and  the  fact  that 
the  seller  was  in  debt  will  not,  of  itself,  invalidate  the  sale, 
although  the  purchaser  may  have  known  that  fact  at  the  time  of 
the  purchase. 


IGG  INSTRUCTIONS 

If  the  jury  believe,  from  the  evidence,  that  C.  was  iiiclel)ted 
to  third  persons  at  the  time  of  the  sale  to  the  plaintiff,  if  such 
sale  has  been  proved,  and  that  the  plaintiff  agreed  to  pay  such 
debts,  this  would  constitute  a  good  consideration  for  the  sale  to 
the  plaintiff,  if  the  sale  was  made  in  good  faith.  Warner  vs. 
Carleton,  22  111.,  415. 

Debtor  may  Transfer  Property  iii  Payment  of  Debts. — The  jury  are 
instructed,  that  a  person  who  is  indebted  and  unable  to  pay  all 
his  debts  in  full,  has  a  right  to  prefer  any  one,  or  more,  of  his 
creditors  to  the  exclusion  of  all  the  others;  and  in  the  payment 
of  a  hotia  fide  indebtedness  to  one  of  his  creditors,  a  debtor 
may  exhaust  the  whole  of  his  property,  so  as  to  leave  nothing 
for  the  other  creditors,  who  are  equally  meritorious.  Bump 
on  Fraud.  Conv.,  183;  State  vs.  Laurie,  1  Mo.  App.,  371 ;  Green 
vs.  Tanner,  49  Mass.,  411;  Kemp  y&.  Walker,  16  Ohio,  118; 
Jluhhard  vs.  Taylor,  5  Mich.,  155. 

That  there  is  no  law  requiring  a  debtor,  however  insolvent,  to 
keep  his  property  until  a  creditor  can  attach  it  or  have  it  levied 
upon  by  an  execution.'  Such  a  debtor  may,  in  good  faith,  and 
for  a  valuable  consideration,  sell  all  his  property  and  apply  the 
proceeds  thereof  to  the  payment  of  any  one  or  more  of  his 
creditors,  as  he  may  see  fit,  if  done  in  good  faith,  although  it  be 
done  with  the  intention  of  defeating  his  other  creditors. 

The  jury  are  instructed,  that  a  conveyance  of  property  made 
in  good  faith  to  pay  an  honest  debt,  is  not  fraudulent,  though 
the  debtor  be  insolvent  and  the  creditor  is  aware,  at  the  time  of 
the  sale,  that  it  will  have  the  effect  of  defeating  other  creditors 
in  the  collection  of  their  debts. 

In  order  to  avoid  the  conveyance  on  the  ground  of  fraud, 
there  must  be  a  real  design  on  the  part  of  the  debtor  to  prevent 
the  application  of  his  property,  in  whole  or  in  part,  to  the  satis- 
faction of  his  debts.  A  creditor  violates  no  rule  of  law  when 
he  takes  payment  or  security  for  his  demand,  if  done  in  good 
faith,  though  others  are  thereby  deprived  of  all  means  of  ob- 
taining satisfaction  of  their  equally  meritorious  claims.  Gray 
vs.  St.  John,  35  111.,  222. 


IN    CIVIL    ACTIONS.  107 

Sale  on  Credit. — The  jury  are  further  instructed,  as  a  matter  of 
law,  that  hi  the  case  of  an  absohite  and  unconditional  sale  of 
goods,  the  fact  that  the  vendor  was  indebted  at  the  time,  that 
the  sale  was  on  credit,  and  that  notes  taken  for  the  unpaid  price 
were  to  be  used  in  the  payment  of  his  debts,  will  not  alone 
establish  fraud  in  such  sale  as  against  his  creditors.  Miller  et 
al.  vs.  Kirhj,  74  111.,  24:2. 

Debtor  may  Prefer  a  Creditor. — That  a  debtor  may  prefer  one 
creditor,  paying  him  in  full,  thus  exhausting  his  whole  property, 
leaving  nothing  for  his  other  creditors.  lie  may,  also,  partially 
pay  a  portion  of  his  creditors  in  unequal  payments,  and  wholly 
neglect  his  other  creditors,  and  yet  the  law  will  not  disturb  such 
disposition  of  his  property,  if  done  in  good  faith. 

The  jury  are  further  instructed,  as  a  matter  of  law,  that  a 
debtor  in  failing  circumstances  has  a  right  to  prefer  one  creditor 
to  another,  and  to  pay  one  creditor  with  goods  obtained  on  credit 
from  another  creditor. 

And  in  this  case,  if  the  jury  l)elieve,  from  the  evidence,  that 
M.  was  lawfully  indebted  to  defendant,  and  finding  that  he 
could  not  pay  all  his  debts,  transferred  the  goods  in  controversy 
to  defendant,  in  payment,  or  in  part  payment,  of  such  indebted- 
ness, then,  upon  the  question  of  the  ownership  of  the  goods, 
the  jury  should  find  a  verdict  for  the  defendant,  unless  they 
further  believe,  from  the  evidence,  that  the  defendant  had 
notice  of  the  fraud  practiced  by  M.  in  obtaining  possession  of 
the  goods,  if  such  fraud  has  been  proven.  Batters  vs.  Ilaugh- 
wout,  42  III,  18. 

Preferring  Wife  as  Creditor. — A  husband  indebted  to  his  wife, 
may  prefer  her  to  his  other  creditors,  and  make  a  valid  appro- 
priation of  his  property  to  pay  her  claim,  even  though  he  is 
thereby  deprived  of  the  means  to  pay  other  debts.  Ferguson 
vs.  Spear,  65  Me.,  277;  Hill  vs.  Boioman,  35  Mich.,  191. 

Purchaser  must  be  Chargeable  with  Notice  of  Fraud. — The  jury  are 
instructed,  as  a  matter  of  law,  that  it  is  not  sutficient,  to  vitiate 
a  sale  of  personal  property,  that  it  was  made  by  the  vendor  to 
hinder,  delay,  or  defraud  his  creditors.  In  order  to  vitiate  such 
sale  as  against  the  purchaser,  he  must  have  had  knowledge  or 


1G8  INSTRUCTIONS 

notice  of  such  intent  on  the  part  of  the  seller.  Miller  vs. 
K'lrlxj,  74  111.,  242;  Hatch  vs.  Jordan,  74  TIL,  414;  Preston 
V8.  Tamer,  36  la.,  671;  Drummond  vs.  Cause  et  al.,  3D  la., 
442. 

The  court  instructs  the  jury,  that  while  our  statute  declares 
every  sale  or  assignment  which  is  made  with  intent  to  defraud, 
hinder  or  delay  creditors  in  the  collection  of  their  debts  void, 
still  such  sale  or  assignment  will  not  be  void  as  against  the  pur- 
chaser, unless  he  knew,  or  had  good  reason  to  suppose,  that  the 
sale  was  made  by  the  seller  with  intent  to  defraud  his  creditors, 
or  to  hinder  or  delay  them  in  the  collection  of  their  debts. 
Bump  on  Fraud.  Conv.,  105;  Preston  vs.  Turner,  39  la.,  671; 
Gentry  vs.  Pohlnson,  15  Mo.,  260;  Lipperd  vs.  Edwards,  39 
Ind.,  165;  IBchs  vs.  Stone,  13  Minn.,  434. 

The  jury  are  further  instructed,  that  although  they  may  be- 
lieve, from  the  evidence,  that  A.  B.  sold  the  property  in  con- 
troversy to  the  plaintiff  for  the  purpose  of  hindering  or  delay- 
ing his  creditors,  still,  if  the  jury  further  believe,  from  the 
evidence,  that  the  plaintiff,  at  the  time  of  the  purchase,  had  no 
notice  or  knowledge  of  such  purpose,  then  the  sale  would  not 
be  fraudulent  or  void,  as  to  the  plaintiff,  by  reason  of  the  fraud- 
ulent intent  on  the  part  of  the  said  A.  B. 

The  jury  are  instructed,  that  to  impeach  a  sale  of  personal 
property  upon  the  ground  of  a  fraudulent  intent  on  the  part  of 
the  seller,  it  is  not  necessary  to  establish  a  fraudulent  intent  on 
the  part  of  the  purchaser;  it  will  be  sufficient  if  the  evidence 
shows  that  he  knew  of  the  fraudulent  intent  of  the  seller,  or 
had  notice  of  such  facts  as  would  have  put  a  man  of  ordinary 
prudence  upon  inquiry,  which  would  have  led  to  a  knowledge 
of  the  fi-audulent  purpose  of  the  seller.  Jones  vs.  Uethering- 
ton,  45  la.,  681;  Zuver  vs.  Lyons,  40  la.,  510. 

Creditor  not  Affected  by  Knowledge,  When. — The  jury  are  in- 
structed, that  when  a  pei-son  purchases  goods  with  the  knowl- 
edge that  his  vendcM-  intends  by  the  sale  to  defraud  his  creditors, 
or  to  hinder  or  delay  them  in  the  collection  of  their  debts,  such 
purchaser  will  not  be  affected  if  he  takes  the  goods,  in  good 
faith,  in  payment  of  an  honest  debt.    A  creditor  violates  no  rule 


IN    CIVIL    ACTIONS.  109 

of  law  when  lie  tako^;  payinoiit  of  \ua  debt,  though  he  knows 
that  other  creditors  are  thereby  deprived  of  all  means  of  obtain- 
ing satisfaction  of  their  own  equally  meritorious  claims.  Gmj/ 
vs.  St.  John,  35  111.,  222. 

What  is  Siifncient  Notice  of  Fraudulent  Intent. — The  court  instructs 
the  jui-y,  that  when  a  transfer  of  property  is  made,  with  intent 
on  the  part  of  the  person  making  it  to  hinder,  delay  or  defraud 
his  creditors,  and  the  X)arty  to  whom  the  transfer  is  made  has 
knowledge  of  facts  and  circumstances  from  which  such  fraud- 
ulent intent  might  reasonably  and  naturally  l)e  inferred,  by  an 
ordinarily  cautious  person,  then  such  transfer  is  fraudulent  and 
void  as  against  the  rights  of  the  creditors.     Boies  vs.  Henney, 

32  111.,  130. 

[See  Notice.] 

Honest  Intent  Presumed. — The  court  instructs  the  jury,  that  the 
law  presumes  that  all  persons  transact  their  business  honestly 
and  in  good  faith,  until  the  contrai-y  appears,  from  a  prepon- 
derance of  the  evidence;  and  the  burden  of  proving  fraud  is 
always  on  the  i:)arty  alleging  it. 

The  jury  are  instructed,  that  all  persons  are  presumed  to  be 
innocent  of  intentional  wrong  until  they  are  proved  to  be  guilty; 
and  all  pei'sons  are  presumed  to  transact  their  business  in  good 
faith,  and  for  a  lawful  purpose;  and  when  an  act  can  as  well 
be  attributed  to  an  honest  intent  and  purpose,  as  to  a  corrupt  or 
unlawful  one,  then  the  jury  are  bound  to  attribute  the  act  to  an 
honest  intent  and  to  a  lawful  purpose. 

CHATTEL  JIOKTGAGE  AS  AGAINST  JUDGMENT  CREDITORS. 

Note. — The  validity  and  legal  effect  of  chattel  mortgages  are  mostly 
matters  of  statutory  regulation.  The  followuig  instructions,  relating  to 
chattel  mortgages,  are  drawn  with  reference  to  the  laws  of  Illinois: 

Good  Between  the  Parties  Without  Koeording-. — The  court  instructs 
the  jury,  that  the  chattel  mortgage,  introduced  in  evidence  in 
this  case,  if  made  and  received  in  good  faith  on  the  part  of  the 
mortgagee,  is  sufficient  to  invest  him  with  the  right  to  take  the 
property  therein  described,  and  to  retain  it  for  the  purpose  of 
selling  it,  as  provided  in  the  mortgage. 


170  INSTRUCTIONS 

As  to  Creditors,  Must  be  Acknowledged  and  Recorded. — The  jury  are 

instructed,  that,  as  between  the  parties  to  it,  a  chattel  mortgage 
is  valid  and  bindino-  without  beinec  acknowledo-ed  or  recorded, 
as  provided  by  statute. 

But  to  render  a  chattel  mortgage  valid  as  to  third  parties, 
such  as  creditors  and  purchasei's,  in  good  faith,  it  must  be  ac- 
knowledged before  the  justice  of  the  peace  in  the  town  where 
the  mortgao-or  resides,  and  an  entry  of  the  mortgage,  containing 
a  description  of  the  property  mortgaged,  must  be  entered  on  the 
justice's  docket ;  and  the  mortgage  must  also  be  filed  for  record  in 
the  office  of  the  recorder  of  deeds  of  the  county  where  the  mort- 
gagor resides. 

If  the  chattel  mortgage  is  not  acknowledged  before  a  justice 
of  the  peace  of  the  town  wdiere  the  mortgagor  resides,  and  an 
entry  of  it  made  on  his  docket,  or  if  it  is  not  filed  for  record  in 
the  office  of  the  recorder  of  deeds,  then,  as  to  the  creditors  of 
the  mortgagor,  it  will  be  invalid,  and  they  may  levy  an  execu- 
tion on  the  property,  as  though  no  mortgage  had  been  made. 
Porter  vs.  Dement,  35  111.,  478. 

The  jury  are  further  instructed,  that  a  chattel  mortgage  not 
acknowledged  or  recorded,  though  obligatory  and  binding  be- 
tween the  parties  to  it,  is  void  as  to  creditors  and  purchasers  in 
good  faith.     Forest  vs.  TinkJiam,  29  111.,  141. 

Mortgagee  Must  See  to  Statutory  Requii-ements. — The  court  instructs 
the  jury,  that  it  is  the  duty  of  the  mortgagee  to  see  that  his 
mortgage  is  entered  upon  the  docket  of  the  justice  before  whom 
it  was  acknowledged,  and  to  see  that  a  correct  description  of  the 
property  covered  by  the  mortgage  is  entered  upon  the  justice's 
docket;  otherwise,  if  the  property,  or  any  portion  of  it,  is  incor- 
rectly or  erroneously  described  on  the  docket,  in  any  material 
particular,  the  mortgage  itself  will  be  invalid,  as  against  pur- 
cliasers  and  creditors,  so  far  as  the  misdescription  extends. 

It  is  the  business  of  the  mortgagee  to  see  that  all  these  requi- 
sites to  the  validity  of  the  mortgage  are  complied  with,  for 
the  omission  to  do  so  will  be  at  his  peril. 

Acknowledgment  and  Recording,  How  Proved.  —The  court  instructs 
the  jury,  that  the  certificate  of  the  justice  of  the  peace,  endorsed 


IN    CIVIL    ACTIOXS.  171 

on  the  mortgage,  is  jprimxt  facie  evidence  that  the  mortgage 
was  duly  acknowledged  before  such  justice,  and  entered  upon 
his  docket,  as  reqnired  by  hiw.  And  the  certificate  of  tlie  re- 
corder, endorsed  on  the  mortgage,  is  jprima  facie  evidence  that 
it  was  duly  recorded  at  the  time  therein  stated. 

Mortf?agee  Mnst  Take  Possession  of  tlie  Property,  When. — The  court 
instructs  the  jury,  that  the  law  requires  a  person  having  a  chat- 
tel mortgage  on  property,  in  order  to  hold  the  property  as 
against  innocent  purchasers  and  creditors,  to  take  possession  of 
the  property,  under  the  mortgage,  as  soon  as  it  can  reasonably 
be  done,  after  the  debt  which  it  is  made  to  secure  becomes  due. 
If  there  is  any  unnecessary  delay  in  taking  such  possession  of 
the  property,  then  the  property  will  be  liable  to  be  levied  upon,* 
or  sold  as  the  property  of  the  mortgagor.  Barhour  vs.  White, 
37  III,  16i. 

Fraudulent  Mort^a^e  Toid. — In  determining  the  question,  whether 
the  mortgage  in  this  case  was  made  in  good  faith,  the  jury 
should  take  into  consideration  all  the  facts  and  circumstances 
proved  on  the  trial;  and  if  the  jury  believe,  from  all  the  evi- 
dence in  the  case,  that  the  mortgage  was  not  made  in  good 
faith,  or  for  a  valuable  consideration,  but  was  made  for  the  pur- 
pose of  covering  up  the  property  of  the  mortgagor,  so  as  to  keep 
it  from  his  creditors,  then  these  facts  would  render  the  mortgage 
fraudulent  and  void,  as  to  third  persons  having  claims  or  liens 
on  the  property  covered  by  the  mortgage. 

That  although  the  jury  may  believe,  fi'om  the  evidence,  that 
the  mortgagor  M'as  indebted  to  the  plaintiff,  to  the  amount  of  the 
debt  mentioned  in  the  mortgage,  at  the  time  the  same  was  made, 
still,  if  the  jury  further  believe,  from  the  evidence,  that  the 
parties  to  the  mortgage  put  a  much  larger  amount  of  property 
in  the  mortgage  than  was  reasonably  necessary  to  secure  the  said 
debt,  and  that  such  excess  of  property  was  put  into  the  mort- 
gage by  the  parties  thereto  for  the  purpose  of  covering  the  same 
up,  and  with  an  intent  to  hinder,  delay  or  defraud  the  creditors 
of  the  said  mortgagor  in  the  collection  of  their  debts,  these  facts 
would  render  the  said  mortgage  void  as  to  such  creditors,  and 
tne  jury  should  find  for  the  defendant. 


172  INSTEUCTIONS 

Note  for  More  than  Amount  Due. — Although  the  jury  may  believe, 
from  the  evidence,  that  there  was  a  good  consideration  for  the 
said  note,  to  the  extent  of  $125,  still,  if  the  jury  further  believe, 
from  the  evidence,  that  there  was  no  consideration  for  more 
than  that  amount,  and  that  the  said  note  and  chattel  morto-ao-e 
were  given  for  a  greater  amount  than  was  due,  for  the  purpose 
of  defrauding,  hindering  and  delaying  creditors  of  the  said 
mortgagor,  then  the  said  note  and  mortgage  are  wholly  void,  and 

confer  no  right  whatever  upon  the  said,  etc,  not  even  for 

the  $125. 

Mortgage  of  Stock  of  Goods. — The  court  instructs  the  jury,  that  a 
chattel  mortgage  of  a  stock  of  goods,  used  in  the  way  of  retail 
trade,  and  where  the  mortgagor  is  allowed  to  continue  in  the 
possession  of  the  property,  and  to  sell  the  goods  in  the  usual 
course  of  trade,  is,  in  law,  fraudulent  and  void,  as  against  the 
creditors  of  the  mortgagor,  no  matter  whether  the  parties  in- 
tended any  actual  fraud  or  not.     Davis  vs.  Hansom,  IS  111.,  39G. 

Both  Parties  Must  Intend  the  Fraud. — Although  the  jury  may  be- 
lieve, from  the  evidence,  that  the  said  A.  B.  made  the  chattel 
mortgage,  with  intent  to  defraud,  hinder,  or  delay  his  creditors, 
still,  if  the  jury  further  believe,  from  the  evidence,  that  the 
plaintiff  was  not  a  party  to  such  fraud,  and  had  no  notice  or 
knowledge  of  such  fraudulent  intent,  but  took  the  mortgage  in 
good  faith  and  to  secure  a  hona  fide  indebtedness,  then  the 
plaintiff  will  in  no  manner  be  affected  by  the  fraudulent  intent 
and  purpose  of  the  said  A.  B. 

If  the  jury  further  believe,  from  the  evidence,  that  the  mort- 
gage was  acknowledged  before  a  justice  of  the  peace  of  the 
town,  in  which  the  mortgagor  lived  at  the  time,  and  that  it  was 
entered  upon  his  docket,  and  then  filed  for  record  in  the  re- 
corder's office  of  this  county;  and  further,  that  it  was  so  filed 
before  the  execution  in  question  came  into  the  hands  of  the 
officer  {or  was  levied  on  the  property),  then  the  jury  should  find 
the  property  in  the  plaintiff. 

Good  Faith,  How  Proved. — The  court  instructs  the  jury,  that  in 
order  to  prove  the  good  faith  of  the  note  and  mortgage,  it  is  not 
necessary  for  the  mortgagee  to  show  the  consideration  by  those 


IN    CIVIL    ACTION'S. 


who  saw  the  same  paid  or  delivered.  It  may  bo  shown  by  the 
proof  of  facts  and  circumstances  which  indicate  *^ood  faith  and 
a  vahiable  consideration. 

Intent  to  Defraud  Must  Exist  at  Time  of  Etc. — To  render  a  chattel 
mortgage  fraudulent,  the  intent  to  defraud  must  exist  when  the 
mortgage  is  made.  The  mortgagor's  subsecpient  conduct  in 
dealing  with  tlie  property,  while  it  may  be  considered  by  the  jury 
in  determining  whether  there  was  fraud  in  the  malving  of  the 
mortgage,  will  not  itself  render  the  mortgage  void.  Ilorton  vs. 
Williams,  21  Minn.,  187. 

Subsequent  Acts  will  not  Render  Void. — If  the  jury  believe,  from 
the  evidence,  that  the  chattel  mortgage  in  question  was  originally 
made  in  good  faith,  and  to  secure  a  honafide  indebtedness,  then 
the  mode  of  sale  under  the  mortgage,  or  the  disposition  of  the 
property  remaining  after  payment  of  the  indebtedness  secured 
by  the  mortgage,  can  have  no  effect  to  render  the  mortgage 
itself  invalid  or  fraudulent,  at  the  time  it  was  made. 

Sales  by  Mortgagor. — If  the  jury  believe,  from  the  evidence 
that  the  chattel  mortgage  introduced  in  evidence,  was  made  in 
good  faith,  and  to  secure  a  hoiia  fide  indebtedness,  then,  even 
though  the  jury  should  further  believe,  from  the  evidence,  that 
the  mortgagor,  from  time  to  time,  sold  off  certain  portions  of 
the  property,  with  the  knowledge  and  consent  of  the  mortgagee, 
these  facts  alone  would  not  render  the  mortgage  void  as  to  the 
balance  of  the  property. 

Mortgage  to  Secure  Future  Advances. — The  court  instructs  the 
jury,  that  a  chattel  mortgage,  made  in  good  faith,  to  secure  an 
existing  indebtedness,  and  also  further  advances,  may  be  a  good 
and  valid  mortgage.  It  is  not  essential  to  the  validity  of  such  a 
mortg;ige  that  it  should  show,  on  its  face,  that  it  was  made  in 
part  to  secure  such  future  advances.  Bump  on  Fraud.  Conv,, 
229;  SpeeT  vs.  SJdnner,  85  111.,  2S2;  Miller  vs.  Loehioood^  32 
X.  Y.,  293;  Shirras  vs.  Craig,  7  Cranch,  34;  TMey  vs.  Har- 
low, 35  Cab,  302. 


174:  INSTRUCTIONS 

'  If  the  jury  believe,  from  the  evidence,  that  the  note  and 
mortgage  in  this  case,  were  given  to  secure  an  actual  indebted- 
ness existino;  at  the  time,  as  well  as  to  secure  further  advances, 
loans  or  credits,  contemplated  by  the  parties  at  the  tnne  the 
mortgage  was  made,  then  the  fact  that  the  note  and  mortgage  were 
made  for  more  than  was  actually  due  at  the  time,  does  not  alone 
render  them  void. 

The  jury  are  instructed,  that,  although  the  taking  of  the  mort- 
gage by  the  mortgagee  for  a  greater  amount  than  was  actually 
due,  may  be  regarded  as  one  of  the  badges  of  fraud;  yet  this 
fact  alone  does  not  render  the  mortgage  fraudulent  or  void,  if 
no  fraud  was  really  intended.     Pihe  vs.  Colvin,  67  111.,  227. 

If  the  jury  believe,  from  the  evidence,  that  the  consideration 
of  the  note  and  mortgage  in  question,  was,  in  part,  a  former  in- 
debtedness, due  from  the  mortgagor  to  the  mortgagee,  and  in 
part  for  money  loaned  at  the  time  they  were  given,  and  in  part 
to  secure  future  advances  agreed  to  be  made  by  the  mortgagee 
to  the  mortgagor,  this  would  not  render  the  mortgage  void,  if 
made  in  good  faith,  and  not  to  hinder,  delay  or  defraud  creditors. 

Possession  by  the  Mortgag:ee. — If  the  jury  believe,  from  the  evi- 
dence, that  the  mortgagee  had  taken  possession  of  the  property 
in  question  under  the  mortgage,  and  was  in  possession  of  it  at 
the  time  the  attachment  writ  was  levied,  then  it  is  immaterial 
whether  the  mortgage  was  recorded  or  acknowledged  before  the 
justice  of  the  peace  in  the  town  where  the  mortgagor  lived. 

If  the  jury  believe,  from  the  evidence,  that  the  mortgage  in- 
troduced in  evidence  in  this  case,  was  made  in  good  faith,  and 
given  for  a  good  and  valuable  consideration,  and  that  the  mort- 
gagee had  taken  the  property,  and  was  in  possession  of  it  under 
the  mortgage  when  the  attachment  writ  {or  execution)  was  issued 
and  levied,  then  the  mortgagor  had  but  a  right  of  redemption  in 
the  property,  and  this  right  would  not  be  subject  to  be  taken  by 
the  creditors  of  the  mortgagor,  unless  they  first  paid  to  the  mort- 
gagee the  amount  of  his  claim  against  the  property. 

Possession  by  the  Mortgagor  after  Default. — The  jury  are  instructed, 
as  a  matter  of  law.  that  v/hen  mortgaged  chattels  have  been  re- 


IN    CIVIL    ACTIONS.  175 

du(;c(l  to  posjiossion,  after  default,  and  the  title  has  become  ahsc*- 
lute  ill  the  mortgagee,  he  may  then  loan  the  property  to  the 
mortgagor,  precisely  as  he  might  any  of  his  other  property,  and 
such  repossession  by  the  mortgagor  would  not  render  the  mort- 
gage, or  the  mortgagee's  title  under  it,  fraudulent  or  void  as  to 
creditors.     Funk  vs.  Staats,  24  111.,  632. 


HIGHWAYS. 

How  Created. — The  court  instructs  the  jury,  that  a  public 
highway  nuiy  be  acquired  by  condemnation  under  the  statute, 
by  grant  from  the  owner — and  after  {tvjenty)  years'  use  by  the 
public,  a  grant  will  be  presumed — and  by  dedication  to  and 
acceptance  of  the  highway  by  the  public;  the  acceptance  of 
the  highway  may  be  inferred  from  travel  by  the  public,  or  from 
repairs  made  thereon  by  the  projier  public  authorities.  Wash- 
burn on  Easements,  125 ;    Gruhe  vs.  Nichols,  30  111.,  90. 

The  jury  are  instructed,  that  the  plaintiff  is  at  liberty  to  rely 
upon  establishing  the  existence  of  the  road  by  proving,  either  a 
condemnation  under  the  statute,  {tioenty)  years'  continuous  ad- 
verse use  by  the  public,  or  dedication  by  the  owner.  And 
if  the  jury  believe,  from  the  evidence,  that  the  plaintiff  has 
proved  the  establishment  of  the  road  in  controversy  I)y  either 
one  of  these  three  methods,  as  explained  in  these  instructions, 
that  is  sufficient  upon  the  question  of  the  existence  of  the  road. 

Presumption  from  Laying  Out  and  Working  Highway. — If  the  jury 
believe,  from  the  evidence,  that  a  public  road  was  laid  out  over 
the  place  in  question;  that  it  was  used  and  traveled  by  the  pub- 
lic, and  that  it  was  I'ecognized  and  kept  in  repair  as  such  by 
the  public  authorities  for  a  period  of  {five)  years,  or  more, 
before  the  commencement  of  this  suit,  then  these  facts  furnish 
a  presumption,  liable  to  be  rebutted  by  proof,  that  such  road  is 
a  public  highway.     Daniels  vs.  The  People,  21  111.  439. 

Existence  of  Higliway,  How  Proved. — The  jury  are  further  in- 
structed, that  the  plaintiff  is  not  bound  to  rely  on  the  record  of 
the  condemnation  proceeding  alone  to  establish  the  existence  of 


17G  INSTEUCTIONS 

tlie  road  in  question;  it  is  sufficient  if  the  jury  believe,  from 
the  evidence,  and  under  the  instruction  of  the  court,  that  there 
M-as,  at  the  time  in  question,  a  legal  highway,  as  explained  in 
these  instructions,  at  the  point  in  question. 

Tliat  a  public  highway  may  exist,  one  part  by  condemnation 
under  the  statute,  anotlier  by  prescription,  which  means  {tioenty) 
years,  or  more,  continuous  adverse  use,  and  still  another  part  of 
the  road  may  exist  by  dedication. 

Condemnation,  How  Proved— Actual  Location  must  Prevail.— The  jury 
are  instructed,  that  the  plat  and  survey  of  a  road  made  by  the 
direction  of  the  commissioners  of  highways  \%  prima  facie  evi- 
dence of  the  location  of  the  road,  but  it  is  not  conclusive.  If 
tlie  jury  believe,  from  the  evidence,  that  the  commissioners 
eventually  staked,  laid  out  and  opened  the  road  different  from 
the  plat  and  survey,  then  the  actual  location  must  be  proved. 

Monuments  Control  Courses  and  Distances. — The  jury  are  instructed, 
that  the  rule  of  law  is,  if  there  is  any  discrepancy  between  the 
courses  and  distances,  as  given  in  the  order  of  the  commissioners, 
and  the  monuments  mentioned  in  the  survey  of  the  road,  or 
actually  placed  on  the  ground,  then  the  monuments  must  prevail. 
Daniels  vs.  The  People,  21  111.,  439. 

That  the  monuments  and  lines  actually  run  by  the  surveyor 
in  surveying  the  road,  and  the  staking  and  laying  out  the  road 
on  the  ground,  must  always  prevail  in  determining  the  location 
of  a  rojid.  The  notes  of  survey,  and  tht.  plat  returned  by  the  sur- 
veyor are  but  matters  of  description,  which  serve  to  assist  in 
determining  the  place  where  the  road  is  laid,  but  they  are  not 
conclusive. 

That  the  actual  surveying,  staking,  laying  out  and  viewing 
the  line  of  tlie  road  upon  the  ground  where  it  is  laid  constitutes 
the  location  of  the  road ;  provided,  the  road  is  actually  opened 
on  that  line. 

If  the  jury  believe,  from  the  evidence,  that  the  surveyor 
actually  surveyed,  laid  out  and  located  the  road  on  the  ground, 
on  what  is  known  as  the  {north)  line,  under  the  direction  of  the 
hi.^-hway  commissioners,  then  that  would  be  the  true  line, 
although  the  survey  and  plat  called  for  a  different  line.  Iliner 
vs.  The  People,  34  111.,  29T. 


IN    CIVIL    ACTIONS.  177 

Pi'ima  Facie  Evidence  of  Location. — The  court  instructs  the  jurv, 
that  the  petition,  report  of  the  commissioners,  the  survey  and 
plat  of  the  surveyor  in  locating  the  road,  at  the  time  the  road  is 
alleged  to  have  been  laid  out,  are  required,  by  law,  to  be  filed 
ill  the  office  of  the  town  clerk,  and  when  they  are  so  filed  they 
become  a  part  of  the  public  records  for  the  use  of  the  public. 
And  {the  copies  of)  all  such  papers  as  have  been  used  in  evi- 
dence in  this  case  are  iwhna  facie  evidence  of  the  facts  stated 
in  them  respectively.     Illner  vs.  The  People,  3i  111.,  297. 

What  is  Meant  by  Dedication. — By  dedication  is  meant  a  giving 
and  granting  of  a  right;  and  before  the  jury  can  find  that  there 
is  a  valid  road  by  dedication,  at  the  point  in  controversy,  they 
must  believe,  from  the  evidence,  that  the  owner  of  the  land  in- 
tended to  give,  and  did  give,  to  the  public  a  right  of  way  over 
the  land,  and  that  the  public  accepted  the  gift. 

Dedication— What  Constitutes. — The  jury  are  instructed,  that  to 
constitute  a  dedication  of  land  for  a  highway,  as  regards  the 
general  public,  the  owner  of  the  fee  must  give  the  right  of  way 
to  the  public,  and  it  must  be  accepted  and  appropriated  to  that 
use  by  travel,  or  a  recognition  of  it  as  a  public  highway  by 
repairs,  or  otherwise,  by  the  proper  public  authorities.  To  show 
a  dedication,  the  acts  of  both  the  donor  and  the  public  author- 
ities, in  these  respects,  must  concur.  State  vs.  Tucker,  36  la., 
485;  Fisk  vs.  The  Town  of  Havana,  88  III,  208. 

Dedication  must  be  Made  by  the  Owner. — The  jury  are  instructed, 
that  a  primary  condition  of  every  valid  dedication  of  land  to 
public  use  is  that  it  should  be  made  by  the  owner  of  the  fee. 
No  one  but  the  owner  in  fee  can  dedicate  land  to  public  use. 
Baugan  vs.  Mann,  59  111.,  492, 

No  Particular  Ceremony  Required. — That  no  particular  form  or 
ceremony  is  necessary  in  the  dedication  of  land  for  a  public 
highway;  all  that  is  required  is  that  the  owner  shall,  in  some 
manner,  manifest  an  intention  to  dedicate  it,  and  that  the  public 
shall  accept  the  dedication.  Morgan  vs.  Railroad  Co.,  9G 
U.S.,  710.  12 


ITS  I  N  S  T  li  I'  C  T  I  O  X  S 

No  Specific  Time  Reqtiii-etl Tlie  jury  are  instrnctcd,   that    no 

specific  length  of  possession  hy  the  puhlic  is  necessary  to  cun- 
stitute  a  dedication  of  ground  as  a  street  or  highway.  It  is  only 
necessary  that  the  owner  shouhl  manifest  an  intention  to  dedi- 
cate it  for  that  purpose  either  by  writing,  by  dechirations,  or  by 
acts,  and  that  tlie  pul)lic  sliould  accejjt  the  dedication  as  made. 
City  Chicago  vs.  Wri<j1d,  <;'J  111,  318;  Gentleman  \^.  Soule,  32 
III,  271. 

That  to  effect  a  dedication  there  must  be  an  intention  so  to 
do,  and  such  intention  may  be  manifested  by  acts  and  accom- 
panying declarations.  No  particular  time  is  necessary  to  con- 
stitute a  dedication ;  it  may  take  place  immediately,  if  the  owner 
of  the  property  intends  it  shall  do  so,  and  the  public  accepts  it. 
Hees  vs.  City  Chicago,  38  111,,  322. 

Dedication  must  be  Accepted. — The  jury  are  instructed,  that  a 
dedication  of  land  to  public  use  may  be  made  by  verbal  declara- 
tions, if  accompanied  by  such  acts  as  are  necessar}^  for  that  pur- 
pose; but  to  make  a  valid  dedication  to  the  public,  an  intention 
to  appropriate  the  right  to  the  general  use  of  the  public  must 
exist;  and  in  order  to  establish  a  dedication  of  land  to  the  pub- 
lic for  a  street  or  highway,  there  must  not  <Mdy  be  an  act  of 
dedication  of  the  land  by  the  owner  for  that  purpose,  but  there 
must  be  some  proof  of  its  acceptance  as  such  by  the  public, 
acting  through  the  proper  authorities.  Kennedy  vs.  Le  Van, 
23  Minn.,  513;  III  Ins.  Co.  vs.  Zittlejield,  07  111.,  368. 

Owner  Must  Intend  to  Dedicate. — The  jury  are  instructed,  that 
there  can  be  no  valid  dedication  of  land  to  public  use  without 
an  intention,  on  the  part  of  the  owner,  to  so  dedicate;  and  al- 
though the  jury  may  believe,  from  the  evidence,  that  the  land  at 
the  point  in  (|uesli(Mi,  had  lieen  used  by  the  public  as  a  highway 

with  the  knowledge  and  (consent  of  the  owner,  for years 

before,  etc.,  still,  this  alone  is  not  sufficient  to  estaldish  the  ex- 
istence of  a  highway  by  dedication;  it  nmst  further  appear,  from 
a  preixniderance  of  the  evidence,  that  the  plaintiff  intended  to 
dedicate  it  to  the  use  of  the  public  as  a  highway. 

That  although  it  is  necessary,  in  order  to  sIkjw  a  dedication  of 
land  to  ])ublic  use,  that  the  owner  intended  thus  to  dedicate  it, 


IN    CIVIL    ACTIONS. 


179 


still,  this  intention  may  be  manifested  by  acts  or  words,  or  partly 
by  both,  and  if  the  jury,  after  considering  all  the  evidence  in  the 
case,  believe  therefrom,  that  before,  etc.,  that  the  plaintiif  in- 
tended to,  and  did  dedicate  the  land  in  qnestion  to  public  use, 
and  with  that  intention,  gave  the  public  the  right  to  travel 
thereon,  and  to  use  the  same  as  a  highway,  and  tliat  the  public 
accepted  the  gift  by  using  and  working  the  road,  then  this  is 
evidence  from  which  the  jury  may  infer  that  there  was  a  dedi- 
cation as  claimed. 

Dedication  Binding  on   the  Owner,  and  all   Claiming  Under   Him.— 

The  jury  are  instructed,  as  a  matter  of  law,  that  a  valid  dedica- 
tion, when  once  made  and  accepted,  is  binding  not  only  on  the 
person  making  it,  but  also  upon  all  persons  claiming  nnder  him 
by  deed  or  otherwise.  Rees  vs.  City  of  Chicago,  38  111.,  322. 
If  the  jury  believe,  from  the  evidence,  that  A.  B.,  while  he 
was  the  owner  of  the  land  at  the  point  in  question,  dedicated  it 
to  public  use  as  a  highway,  as  explained  in  these  instructions, 
and  that  the  public  accepted  the  dedication,  then  the  portion  so 
dedicated  should  be  deemed  to  be  a  public  highway.  Town  of 
Havana  vs.  Biggs,  58  111.,  -1:83, 

Dedication  by  Sale  of  Lots  Bonnded  on  Streets. — That  when  the  owner 
of  land,  within  or  near  a  city  or  village,  lays  it  off  into  lots, 
blocks  and  streets,  and  makes  a  plat  of  the  same,  marking  there- 
on the  streets  and  lots,  and  then  sells  one  or  more  of  the  lots,  by 
reference  to  the  plan  or  plat,  he  thereby  annexes  to  each  lot  sold 
a  right  of  way  in  the  street,  which  neither  he  nor  his  successors 
in  the  title  can  interrupt  or  take  away.  Bartlett  vs.  Bangor, 
G7  Me.,  400;  Fisher  et  al.  vs.  Beard,  32  la.,  346. 

The  court  instructs  the  jnry,  as  a  matter  of  law,  that  if  the 
owner  of  a  piece  of  land  lays  it  out  into  lots  and  blocks,  with 
streets  and  alleys,  and  then  sells  off  a  lot,  bounding  the  lot  by  one 
of  the  designated  streets,  then  tlie  purchaser  of  the  lot  will  ac- 
quire a  right  to  have  the  street  remain  open  for  street  purposes, 
whether  it  is  so  mentioned  in  the  deed  or  not. 

Prescription— (Twenty)  Tears'  User. — If  the  jury  believe,  from  the 
evidence,  that  a  public  road  has  l)een  used  by  the  public  over  the 
place  in  question,  for  {twenty)  years  or  more,  without  interrup- 


180  INSTRUCTIONS 

tioii,  and  that  tlie  owners  of  the  land  have  acquiesced  tlicrein, 
during  all  that  time,  then  the  law  ]n-csumes  a  grant  or  a  dedica- 
tion of  the  ground  upon  which  the  road  runs,  to  the  use  of  the 
jniblic,  for  a  common  highway.     State  vs.  Green^  41  la.,  693. 

The  court  instructs  the  jury,  that  a  peaceable,  continuous  and 
uninterrupted  use  of  a  piece  of  ground,  as  a  highway,  by  the 
public  for  {twenty)  years,  or  more,  creates  what  is  called  a  pre- 
scriptive right  to  use  the  road  as  such;  and  this  right  continues 
till  it  is  clearly  and  unmistakably  abandoned  by  the  public.  A 
partial  or  transient  non-user  of  a  road,  l)y  reason  of  the  travel 
being  diverted  to  other  roads,  is  not  sufficient  to  establish  an 
abandonment  of  such  i-oad.  Toiun  of  Leicistoion  vs.  Proctor, 
27  111.,  414. 

Prescription— Travel  Must  be  Confined   to  a  Particular  Route. — The 

jury  are  instructed,  that  the  public  cannot  acquire  a  right  by 
pi-escription ;  that  is,  by  aiiser  for  {twenty)  years,  to  travel  over  a 
ti'act  of  land  genei'ally.  The  travel  and  the  right  of  way  must 
be  confined  to  a  sjiecific  line  or  way,  that  could  properly  be  called 
a  road. 

That  travel  may,  slightly  deviate  from  the  thread  of  a  road  to 
avoid  an  obstruction,  and  still  not  change  the  road  itself.  Kelsey 
vs.  Fiirman,  36  la.,  614. 

The  jury  are  further  instructed,  that  if  various  and  distinct 
lines  of  travel  have  been  used  at  different  times  across  a  piece  of 
land,  the  time  during  which  the  different  lines  have  been  used 
cannot  be  so  computed  as  to  make  up  the  requisite  {twenty)  years 
to  establish  a  prescri})tive  right  of  way  to  any  single  line  of  road. 
Gentleman  vs.  Soule,  32  111.,  271. 

{See  Adverse  Possession.] 

If  the  jury  l)elieve,  from  the  evidence,  that  the  pul)lic  acqui- 
esced in  tlie  placing  of  the  obstruction  ('()nq)lained  of  in  tlie 
road  in  question,  l)y  the  defendant,  and  that  tlie  public  accepted 
the  road  spoken  of  by  the  witnesses  as  {"the  north  road")  in  lieu 
of  the  road  in  question,  and  used  the  said  substituted  road  for  a 
l^eriod  of  {Jive)  years  before  the  commencement  of  this  suit,  then 
the  public  have  waived  their  right  in  the  defendant's  land  at 
the  point  of  the  obstruction,  and  the  plaintiff  is  not  entitled  to 
recover  in  this  suit.      Gruhe  vs.  Nichols^  36  111.,  92. 


IN    CIVIL    ACTIONS.  181 


INTOXICATING     LIQUORS. 

Note.— The  statutes  of  the  different  states,  giving  a  right  of  action  for 
injuries  sustained  in  consequence  of  the  intoxication  of  any  person,  vary 
somewhat  in  their  details,  although  they  are  similar  in  their  general  feat- 
ures. The  following  instructions,  adapted  to  this  class  of  cases,  with  slight 
changes,  will  generally  be  found  applicable  to  the  laws  of  most  of  the  differ- 
ent states: 

Suit  by  a  Wife— Statutory  Provisions. — The  jury  are  instructed, 
that  hy  the  law  of  this  state,  every  person  ^vho  sells  or  gives 
intoxicating  liquors  to  another,  and  thereby,  in  whole  or  in  part, 
causes  the  intoxication  of  such  person,  is  liable  to  the  wife  of 
the  person  so  becoming  intoxicated,  for  any  injury  which  she 
may  sustain  in  her  means  of  support,  resulting  from  the  death 
of  her  husband,  if  his  death  ensues  as  a  consequence  of  such 
intoxication. 

The  statute  of  this  state  provides  that  every  wife,  who  shall 
be  injured  in  person  or  property,  or  means  of  support,  in  conse- 
quence of  the  intoxication,  habitual  or  otherwise,  of  her  hus- 
band, may  have  a  right  of  action  in  her  own  name  against  any 
persons  who  shall,  by  selling  or  giving  intoxicating  liquors  to 
her  husband,  have  caused  such  intoxication  in  whole  or  in  part. 

Wliat  Must  be  Proved. — The  jury  are  instructed,  that  if  they 
believe,  from  the  evidence,  that  the  plaintiff  was  the  wife,  and 
is  now  the  widow  of  the  said  F.  M.,  and  that  the  said  defend- 
ants, or  any  or  either  of  them,  or  the  servants,  employes,  or  any 
person  acting  for  said  defendants,  or  any  or  either  of  them,  did 

on  or  about sell  or  give  to  the  said  F.  M.  beer,  or  any 

other  intoxicating  liquor,  and  thereby,  in  whole  or  in  part,  cause 
the  intoxication  of  the  said  "  M.,"  and  that  the  said  M.,  while 
under  the  influence  of  such  intoxication,  and  in  consequence 
thereof,  lost  his  life  in  manner  and  form  as  charged  in  the 
declaration,  and  that  the  plaintiff  was  thereby  damaged  in  her 
means  of  support,  then  the  jury  should  find  the  said  defend- 
ants, or  such  of  them  as  are  proved  to  have  contributed  to  such 
intoxication,  in  whole  or  in  part,  guilty,  and  assess  the  plaintiff's 
damages.  Fountain  vs.  Draj)e7\  49  Ind.,  -i-il  ;  Emory  vs. 
Addis,  11  111.,  273  ;  Woolheather  vs.  Risley,  38  la.,  48G  ; 
Worley  vs.  Sjnii'geon,  48  la.,  465. 


1 82  INSTRUCTIONS 

Dcfendiints  Jointly  ami  Severally  Liahlo. — Tlie  jury  are  fuitlier  in- 
stnictod,  that  in  actions  of  this  kind,  it  is  not  nc(;essary  to  make 
all  persons  who  have  been  iJ^uilty  of  selling  intoxicating  liquors 
to  the  deceased,  defendants  in  a  suit  for  damages,  if  any,  result- 
ing from  intoxication,  caused  by  their  joint  act  and  sales,  but 
the  person  injured  may  sue  any  one*  or  more  of  the  persons, 
who,  by  themselves,  their  agents  or  employes,  made  such  sale, 
and  recover  from  him  or  them,  if  found  guilty,  the  damages  sus- 
tained. 

Siiincioiit  if  the  Liquor  Sold  Contributed,  Etc. — The  jury  are  fur- 
ther instructed  that  though  they  may  believe,  from  the  evidence, 
that  the  deceased  had  li(|uor  in  his  liouse,  or  about  his  piM'son, 
or  had  bought  or  taken  it  at  places  other  than  at  the  saloon  of 
the  defendants,  still  this  fact  would  constitute  no  defense  to  this 
action;  provided,  the  jury  believe,  from  the  evidence,  that  the 
deceased. obtained  intoxicating  liquors  at  the  saloons  of  the  de- 
fendant, which  contributed  to  his  intoxication,  and  that  his 
death  resulted  as  a  consequence  of  such  intoxication.  Roth  vs. 
Eppy,  80  111.,  283;  Boyd  vs.  Watt,  27  Ohio  St.,  259;  Wool- 
heather  vs.  Risley,  38  la.,  486, 

In  order  to  make  a  dram-shop  keeper  liable  for  injuries 
occasioned  by  intoxication,  which  results  from  the  drinking  of 
intoxicating  liquors  sold  by  him,  it  is  not  necessary  that  such 
intoxication  should  be  wholly  produced  by  liquor  sold  by  him; 
it  is  only  necessary  to  show  that  the  liquor  s(;ld  by  him  con- 
tributed or  assisted  in  producing  such  intoxication. 

Even  though  the  jury  believe,  from  the  evidence,  that  the 
intoxication  complained  of  resulted  in  part  from  liquors  drank 
by  the  said  B.  before  he  went  to  the  saloon  of  the  defendant, 
still  that  fact  affords  no  defense  in  this  case,  if  the  jury  further 
l)elieve,  from  the  evidence,  that  the  defendant  sold  intoxicating 
li(jUors  to  deceased,  and  that  the  intoxicating  liquors  so  sold  by 
defendant  contributed  or  assisted  to  produce  such  intoxication, 
and  that  deceased  died  in  coosequence  of  such  intoxication. 

Owner  of  the  Premises,  Etc. — The  jury  are  instructed,  that  under 
our  statute,  the  owner  of  premises  upon  which  intoxicating  licpiors 
are  kept  for  sale,  contrary  to  law,  is  not  guilty  of  an  offense  if 
he,  in  good  faith,  leased  them  for  a  lawful  pur^xjse,  and  did  not 


IN    CIVIL    ACTIO XS.  183 

afterwards  affirmatively  assent  to  such  unlawful  use;  tlie  mere 
failure  to  prevent,  or  to  attempt  to  prevent,  the  illegal  use  or 
sale  of  the  liquors,  does  not  subject  him  to  the  penalties  of  the 
statute.     Stccte  vs.  B ailing (j all ^  42  la.,  87. 

Ssiit  Against  the  Saloou-Keeper  and  Owner  of  tlie  Building-  Jointly.— 

The  court  instructs  the  jury,  that  the  law  under  which  this  suit 
is  brought,  provides  that  every  wife,  who  shall  be  injured  in. 
person  or  property,  or  means  of  support,  in  consequence  of  the 
intoxication,  habitual  or  otherwise,  of  her  husband,  may  have  a 
right  of  action,  in  her  own  name,  against  any  person  or  persons, 
who  shall,  by  selling  or  giving  intoxicating  liquor  to  her  hus- 
band, have  caused  such  intoxication,  in  whole  or  in  part ;  and  the 
law  further  provides,  that  any  person  owning  any  building  or 
premises,  where  such  liquors  are  sold,  knowing  that  intoxicating 
liquors  are  sold  therein,  and  knowingly  permitting  such  sale, 
shall  be  liable  jointly  with  the  person  or  persons  selling  or  giv- 
ing such  intoxicating  liquors,  for  all  damages  which  may  be  sus- 
tained in  the  manner  above  stated. 

The  jury  are  further  instructed,  that  if  they  find,  from  the 
evidence,  that  the  defendant,  II.  II.,  is  guilty,  as  charged  in  the 
declaration,  and  if  they  further  find,  from  the  evidence,  that  the 
other  defendant,  S.  H.,  was  the  owner  of  the  building  or  prem- 
ises, where  the  liquors  were  sold  or  given  to  the  deceased,  and 
that  he  then  knew  that  the  said  defendant,  II.  II.,  was  keeping 
a  saloon  on  said  premises,  and  selling  intoxicating  liquors  therein, 
and  knowingly  permitted  such  sales,  then  the  jury  will  find  both 
the  defendants  guilty,  and  assess  the  damages  equally  against 
both,  if  any  damages  have  been  proved. 

Propriety  of  tlie  Law  not  a  (Question  for  the  Jury. — The  court  instructs 
the  jury,  that  it  is  not  for  them,  in  this  case,  to  inquire  into  or 
consider  the  propriety  of  the  law  now  in  force,  relating  to  the 
sale  of  intoxicating  liquors,  under  which  this  action  is  brought. 
The  law,  as  it  stands  upon  the  statute  book  of  this  state,  should 
be  enforced;  and  if  the  jury  believe,  from  the  evidence,  in  this 
case,  that  the  defendants,  or  any  or  either  of  them,  contributed 
to  the  intoxication  of  plaintiff's  husband,  if  such  intoxication  has 
been  proved,  and  that  in  consequence  of  such  intoxication,  her 


184  INSTRUCTIONS 

liiisl);uul  (lied,  as  alleged  in  plaintiffs  declaration,  and  that  the 
j)laintiff  has  been  injured,  in  her  means  of  supiH)rt,  by  reason  ol" 
such  death,  then  the  jury  should  find  for  the  plaintiff,  asairainst 
such  of  the  defendants  as  have  been  proved  to  have  contributed 
to  such  intoxication,  in  whole  or  in  ])art. 

Biinlen  of  Proof— What  Must  be  Proved. — The  court  instructs  the 
jury,  that  to  entitle  the  plaintiff  to  recover,  it  must  be  proved,  by 
a  preponderance  of  the  evidence,  that  the  defendants,  or  one  of 
them,  sold  intoxicating  liquors  to  the  deceased,  and  thereby  con- 
tributed to  cause  his  intoxication,  in  whole  or  in  part,  and  that 
his  death  resulted  as  a  consequence  of  such  intoxication. 

To  entitle  the  plaintiff  to  recover  in  this  suit,  it  is  not  enough 
for  her  to  show  that  she  has  been  injured  in  her  means  of  sup- 
port, by  the  death  of  lu'r  husband;  it  nnist  further  appear,  from 
the  evidence,  that  such  death  was  caused  by,  or  was  in  conse- 
quence of,  his  intoxication,  and  that  defendants,  or  one  of  then), 
sold,  or  gave,  him  intoxicating  licpioi's,  which  produced  such  in- 
toxication, in  whole  or  in  part;  and  each  of  these  particulars 
must  be  proved  by  a  preponderance  of  the  evidence. 

To  entitle  the  plaintiff  to  recover  in  this  suit,  it  is  not  enough 
that  the  jury  may  believe,  from  the  evidence,  that  the  defend- 
ants, or  one  of  them,  sold  beer  to  the  deceased,  M'hich  contribu- 
ted to  cause  his  intoxication,  in  whole  or  in  part;  it  must  fur- 
ther appear  that  the  intoxication  was  the  imnuMliate  or  })roxinuite 
cause  of  his  death,  and  not  merely  that  it  was  the  remote  cause 
or  occasion  of  his  death. 

The  court  instructs  the  jury,  that  to  entitle  the  plaintiff  to  re- 
cover against  any  one  or  more  of  the  defendants,  the  juiy  must 
believe,  from  the  evidence,  that  such  defendants  sold  or  gave 
intoxicating  liquors  to  the  deceased,  ami  thereby  caused  or  con- 
tributed to  cause,  his  intoxication,  in  whole  or  in  part;  and  so 
far  as  the  injury  com])lained  of  results  from  the  death  of  the 
deceased,  it  must  appear  that  the  death  was  caused  by  such  in- 
toxication. 

Proxhuatc  Cause,  What  —  In  (let(u-mining  whether  an  act  is  tlu; 
proxinuite  cause  of  an  inpiry,  tlu;  legal  test  is:  Was  the  iiipu-y 
of  such  a  character  as  miu-ht  I'easonablv  have  been  foreseen  or 


IN    CIVIL    ACTIONS.  1S5 

expected,  as  the  natural  result  of  the  act  complained  of  ?  A 
party  is  not,  in  law,  chargeable  with  results  which  do  not  natu- 
rally and  reasonably  follow  as  the  consequences  of  his  conduct. 

In  determining  whether  the  intoxication  was  the  immediate  or 
proximate  cause  of  the  death  of  the  deceased,  the  jury  should 
consider  whether  the  causes,  which  actually  produced  his  death, 
were  such  as  naturally  resulted  as  a  consequence  of  the  intoxica- 
tion, and  of  such  kind  as  might  have  been  reasonably  anticipated 
by  a  reasonable  person.  If  they  were  not  such,  then  the  intoxica- 
tion can  not,  in  law,  be  regarded  as  the  immediate  and  proxi- 
mate cause  of  his  death,  and  the  defendants  are  responsible 
therefor. 

If  the  jury  believe,  from  the  evidence,  that  the  immediate  and 
proximate  cause  of  the  deatli  of  the  deceased,  was  either  apo- 
plexy, heart  disease,  or  sunstroke,  then  the  plaintiff  cannot  recover 
in  this  case,  unless  the  jury  further  believe,  from  the  evidence, 
that  such  disease  was  caused  by,  or  was  the  natural  and  proxi- 
mate result  of  the  intoxication  of  the  deceased,  and  that  such 
intoxication  was  caused,  in  whole  or  in  part,  by  the  intoxicating 
liquors  furnished  by  the  defendants,  or  one  of  them ;  and  fur- 
ther, that  such  a  result  of  the  sale  of  the  intoxicating  liquors 
might  have  been  reasonably  foreseen  or  anticipated  by  the  de- 
fendants, at  the  time  such  liquors  were  sold. 

The  court  instructs  the  jury,  as  a  matter  of  law,  that  damages, 
to  be  recoverable,  must  be  the  natural  and  reasonable  result  of 
the  defendant's  act ;  and  if  of  such  a  character  as  in  the  ordinary 
course  of  things,  would  flow  from  the  act,  they  may  be  recov- 
ered, otherwise  they  are  too  remote.  A  party  cannot  be  hehl 
responsible  for  injuries  which  could  not  reasonably  have  been 
foreseen  or  expected,  as  the  result  of  his  misconduct.  PTiillijps 
vs.  Dickerson,  85  111.,  11;  Shugart  vs.  Egan,  83  111.,  56. 

An  act  is  the  proximate  cause  of  an  event  only  when,  in  the 
natural  course  of  things,  and  under  the  particular  circumstances 
surrounding  it,  such  an  act  would  naturally  produce  the  event, 
and  in  order  to  create  legal  liability  for  damages,  the  injury 
must  be  such  as  a  man  of  ordinary  experience  and  sagacity  could 
foresee  might  probably  ensue  from  said  act. 

The  court  instructs  the  jury,  that  to  entitle  the  plaintiff  to  re- 
cover in  this  case,  the  damages  claimed  must  be  the  direct  con- 


186  INSTRUCTIONS 

sequences  of  the  act  complained  of.  The  relation  of  cause  and 
effect  must  be  shown  to  exist  between  the  act  complained  of  and 
the  injury;  and  this  relation  of  cause  and  effect  cannot  be  made 
out  by  including  the  illegal  acts  of  a  third  i)erson. 

New  or  Intervening  Cause. — The  court  instructs  the  jury,  as  a 
matter  of  law,  that  while  a  man  is  answerable  for  the  natural 
and  pi'ol)able  consequences  of  his  own  acts,  still,  if  his  act  hap- 
pen to  concur  with  something  exti'aordinary,  and  not  reasonal)ly 
to  have  been  foreseen,  and  thus  produce  an  injury,  he  will  not 
be  liable  therefor;  j)rovided,  such  extraordinary  and  unforeseen 
condition  was  not  produced  by,  or  was  ncjt  the  direct  result  of, 
his  own  wrongful  act. 

If  the  death  of  a  party,  who  receives  a  wound  while  intoxi- 
cated, (-an  be  traced  as  the  natural  and  probable  result  of  any 
new  and  intervening  cause,  such  as  reckless  exposure  of  himself, 
or  amputation  of  the  wounded  limb,  where  an  amputation  was 
not  necessary,  the  liquor  seller  will  not  be  responsible  to  the  wife 
for  the  death. 

The  damages  to  be  recovered  in  an  action  must  always  be  the 
natural  and  proximate  consequence  of  the  wrongful  act  com- 
2)laincd  of.  If  a  new  force  or  power  has  intervened,  of  itself 
sufficient  to  stand  as  the  cause  of  the  mischief  or  injury,  the  first 
must  be  considered  as  too  remote.  Schmidt  vs.  Mitchell,  84 
111.,  195. 

[See   "  Negligence,"  Proximate  Cause.'\ 

Preponderance  of  Evidence  Sufficient. — The  jury  are  further  in- 
structed, that  in  civil  actions  of  this  kind,  it  is  not  neccessary 
that  the  fact  of  the  sale  of  intoxicating  liquors,  or  any  other  fact 
necessary  to  a  recovery,  should  be  proved  beyond  a  reasonable 
doubt ;  it  is  only  necessary  that  the  facts  should  be  proved  to 
the  satisfaction  of  the  jury  by  a  preponderance  of  the  evidence. 

Oood  Faith  not  a  Mitigation,  When — TJie  jury  are  instru('ted,  that 
although  they  may  believe,  from  tlie  evidence,  that  any  or  either 
of  the  defendants,  in  good  faith,  instructed  his  bar-kee})er  not 
to  sell  liquor  to  the  deceased,  still,  this  fact  cannot  be  considered 


IN    CIVIL    ACTIONS.  187 

by  the  jury  in  mitigation  of  the  actual  damages  sustained  by  the 
plaintiff,  if  any  such  have  been  proved,  in  case  you  find  such 
defendant  or  defendants  guilty. 

If  the  jury  believe,  from  the  evidence,  that  the  deceased  died 
from  the  effects  of  what  is  known  as  {sunstroJce),  and  that  that 
disease  was,  in  a  measure,  caused  by  the  habitual  intoxication  of 
the  deceased,  for  a  considerable  time  before  his  death,  still  the 
defendants  would  not  be  liable  for  causing  his  death,  unless  the 
plaintiff  has  proved,  by  a  preponderance  of  evidence,  that  the 
defendants,  or  one  of  them,  furnished  the  deceased  with  liquors, 
which  caused  such  habitual  intoxication,  in  whole  or  in  part. 

Verdict  Must  be  Fouiuled  ou  the  Evidence. — In  determining  any  of 
the  questions  of  fact  presented  in  this  case,  the  jury  should  be 
governed  solely  by  the  evidence  introduced  before  them;  the 
jury  have  no  right  to  indulge  in  speculations  or  conjectures,  not 
supported  by  the  evidence. 


LAN  D  LO  RD    AND    TENANT. 

Lease  Not  Modified  or  Surrendered  —  Suit  for  Reut. — The  court  in- 
structs the  jury,  that  if  they  believe,  from  the  evidence,  that  on 
or  about,  etc.,  the  plaintiff  and  defendant  entered  into  a  verbal 
contract,  by  which  the  defendant  rented  the  premises  in  ques- 
tion, of  the  plaintiff,  for  the  tlien  coming  season,  or  for  the  then 

next  year,  and  agreed  to  pay  as  rent  therefor  the  sum  of  § , 

and  the  jury  further  believe,  from  the  evidence,  that  that  con- 
tract has  never  been  modified,  or  rescinded,  by  any  subsequent 
agreement  of  the  parties,  and  that  the  defendant  occupied  the 
premises,  under  such  original  contract,  then  the  plaintiff  will 
have  the  right  to  recover  the  amount,  so  agreed  to  be  paid  as 
rent,  from  the  defendant  in  this  action. 

If  the  jury  believe,  from  the  evidence,  that  the  lease  in  ques- 
tion, was  executed  by  the  plaintiff  and  defendant,  and  that  the 
defendant  went  into  the  possession  of  the  premises,  under  said 
lease,  and  also,  that  said  lease  has  never  been  canceled,  or  sur- 
rendered, by  the  agreement  of  the  parties,  then  the  jury  should 


188  INSTRUCTIONS 

tind  for  the  plaintiff,  for  the  time  (luring  which  they  believe, 
from  the  evidence,  the  rent  lias  remained  unpaid,  at  the  rate  of 
8 per  year,  unless  the  jury  further  believe,  from  the  evi- 
dence, that  the  contract  was  subsecpieiitly  modified,  by  agree- 
ment of  the  parties,  and  the  rent  reduced  to  $ per  year,  in 

which  case,  the  jury  should  calculate  the  rent  due,  at  the  rate  of 

$ a  year,  since  the  making  of  such  new  agreement,  less  the 

amount  paid  thereon,  if  they  find,  from  the  evidence,  that  any 
portion  of  the  rent,  coming  due  after  that  date,  has  l)een  jmid. 
Strobie  vs.  Dills,  G2  111.,  432. 

If  the  jury  believe,  from  the  evidence,  that  the  plaintiff  and 
defendant  executed  the  lease,  introduced  in  evidence,  and  tliat 
the  defendant  entered  into  possession  of  the  premises,  therein 
described,  under  such  lease,  then  the  defendant  is  liable  to  pay 
to  the  plaintiff  the  amount  of  the  rent  accrued  thereon,  up  to 
the  day  of,  etc.,  after  deducting  such  payments  as  the  jury  be- 
lieve, from  the  evidence,  have  been  made  thereon,  unless  the 
jury  further  believe,  from  the  evidence,  that  said  lease  has  been 
canceled,  surrendered,  or  modified,  by  some  subsequent  agree- 
ment between  the  parties. 

Oeciipant,  Liable  for  Rent,  When— Illinois. — The  court  further  in- 
Btructs  the  jury,  that  under  the  laws  of  this  state,  in  all  cases 
where  lands  belonging  to  one  pel-son,  are  held  and  occupied  by 
another,  without  any  special  agreement  for  the  rent  of  such 
premises,  the  owner  of  the  land  may  sue  for,  and  recover  as 
rent,  a  fair  and  reasonable  satisfaction  for  such  use  and  occu})a- 
tion  of  his  land. 

The  court  further  instructs  the  jury,  that  if  they  believe, 
from  the  evidence,  that  the  2:)lainti£f,  during  the  year, — was  the 
owner  of  the  land,  for  which  rent  is  claimed  in  this  suit,  and 
that  the  defendant,  during  the  same  year,  used  and  occupied 
said  premises,  by  pasturing  his  cattle  thereon,  witho.ut  any 
special  agreement  as  to  the  payment  of  rent,  then  under  the 
laws  of  this  state,  the  plaintiff  has  tlie  riglit  to  recover  in  this 
suit,  what  such  use  and  occupation  was  reasonably  worth,  under 
the  evidence  in  this  case.     R.  S.  of  111.,  chap.  80,  §  1. 

Surrender  of  Premises,  How  EJlected. — In  respect  to  the  alleged 
surrender  of  the  j^i'emises,  the  court  instructs  the   jnry,  that  a 


IN    CIVIL    ACTIONS.  189 

valid  surrender  of  a  lease,  and  of  the  estate  thereby  created,  can 
only  be  made  by  a  mutual  agreement,  or  assent  of  the  landlord 
and  tenant,  to  that  effect.  Nelson  vs.  Thompson^  23  Mum.,  508 ; 
Morgan  vs.  Smith,  70  N.  Y.,  537 ;  Ladd  vs.  Smith,  6  Oreg.,  31G. 

SniTender  Must  be  Assented  to  by  Landlord.  —  The  jury  are  in- 
structed, that  no  surrender  of  the  premises  in  question,  by  the 
defendant,  could  take  effect  unless  the  plaintiff,  by  himself  or  by 
some  authorized  agent,  accepted  such  surrender ;  and  although  the 
jury  may  believe,  from  the  evidence,  that  the  defendant  vacated 
the  premises  in  controversy,  and  gave  notice  thereof  to  the 
plaintiff,  yet  this  alone,  would  not  exonerate  the  defendant  from 
the  payment  of  rent  thereafter,  unless  the  surrender  was  as- 
sented to  by  the  plaintiff,  as  a  surrender  of  the  possession  to 
him.      Taylor's  Land.  &  Ten.,  §  515. 

The  jury  are  instructed,  that  although  they  may  believe,  from 
the  evidence,  that  the  defendant  moved  away  from  the  premises 
in  question,  and  sent  the  keys  of  the  building  to  the  plaintiff, 
and  that  the  plaintiff  retained  the  keys,  this  alone  would  not 
constitute  a  surrender  of  the  premises  by  the  defendant,  and  an 
acceptance  of  such  surrender  by  the  plaintiff. .  Toionsend  vs. 
Albert,  3  E.  D.  Smith,  560;    Withers  vs.  Larrahee,  48  Me.,  570. 

That  to  constitute  a  valid  surrender  of  a  lease,  or  of  leased 
premises,  there  must  be  an  offer  to  surrender  by  the  tenant  and 
such  offer  must  be  accepted  by  the  landlord. 

Eviction  Stops  the  Rent. — The  principle  upon  which  a  tenant  is 
required  to  pay  rent,  is  the  beneficial  enjoyment  of  the  premises 
unmolested  in  any  way  by  the  landlord;  and  in  this  case,  if  the 
jury  believe,  from  the  evidence,  that  after  defendant  went  into 
possession  of  the  premises,  the  plaintiff  took  possession  of  any 
part  of  the  premises  leased,  against  the  consent  of  the  defendant, 
and  in  such  a  way  as  to  prevent  the  defendant  having  the 
beneficial  use  of  all  the  premises  leased,  this  in  law  is  an  evic- 
tion, and  releases  the  defendant  from  the  payment  of  any  more 
rent  while  such  eviction  continues. 

Eviction  from  a  Part  of  the  Premises. — Although  the  jury  may  be- 
lieve, from  the  evidence,  that  the  defendant  has  never  been  dis- 


190  IX STRUCT IONS 

turbed  in,  or  evicted  from,  the  main  building  on  the  leased 
premises,  and  that  he  has  had  the  use  and  enjoyment  of  the 
same,  still,  if  they  further  believe^  from  the  evidence,  that  the 
plaintiff  has  taken  possession  of  any  material  part  of  the  prem- 
ises leased  without  the  consent  of  the  defendant,  tliis  in  law  is 
an  eviction,  and  the  defendant  is  not  bound  to  pay  any  rent, 
during  the  time  of  such  eviction,  for  the  part  of  the  premises 
which  he  did  use  and  occupy.  Taylor's  Land.  &  Ten.,  §  378. 
Walter  vs.  Tucker,  70  111.,  527;  Zewis  vs.  Pa7/n,  4  Wend., 
423;  Colburn  vs.  Morrill,  117  Mass.,  262;  Dai/  vs.  Watson,  8 
Mich.,  535 ;  SJcaggs  vs.  Emerson,  50  Cal.,  3. 

Forcible  Expulsion  Not  Necessary.  —  Forcible  expulsion  is  not 
necessary  to  cause  an  eviction;  any  act  done  in  violation  of  the 
rights  of  the  tenant  without  his  consent,  whicth  deprives  him  of 
the  beneficial  use  and  enjoyment  of  a  material  part  of  the 
premises  leased,  will  amount  to  an  eviction;  if  the  jury  in  this 
case  believe,  from  the  evidence,  that  the  plaintiff,  after  making 
the  lease,  without  the  consent  of  the  defendant,  took  possession 
of  any  material  part  of  the  premises  leased,  then  the  defendant 
is  released  from  the  payment  of  all  rent  accruing  after  that 
date.     Taylor's  Land.  <k  Ten.,  §  381. 

If  the  jury  believe,  from  the  evidence,  in  this  suit,  that  the 
plaintiff,  after  leasing  the  premises  to  the  defendant,  leased  a 
part  of  said  premises  to  one  11.  "W.,  who  has  since  taken  posses- 
sion of  the  same  under  the  lease  to  him,  then  in  law  this  is  an 
eviction  from  the  time  the  said  II.  W.  so  took  possession,  and 
the  defendant  is  released  from  the  payment  of  all  rent  accruing 
during  such  eviction.     Smith  vs.  Wise  et  al.,  58  111.,  141. 

If  the  juiy  believe,  fi'om  the  evidence,  that  the  defendant 
was  a  tenant  of  the  premises  at  the  time  in  cpiestion,  under  a 
lease  from  the  plaintiff,  and  that  against  defendant's  consent, 
and  without  any  understanding  or  agreement  permitting  it,  the 
plaintiff  took  possession  of  any  material  part  of  said  premises 
and  evicted  the  defendant  tlierefroni,  and  prevented  him  from 
using  and  occupying  the  same,  then  such  eviction  worked  an 
extinguishment  of  all  rent  for  the  whole  of  said  premises  from 
the    time  such    eviction  occurred,  notwithstanding  the  defend- 


IN    CIVIL    ACTIONS.  101 

ant  continued  to  occupy  a  portion  of  said  premises  after  that 
time.     Price  vs.  P.,  Ft.  W.  <&  C.  Ry  Co.,  34  111.,  13. 

Acts  of  Trespass  not  Eviction. — The  court  instructs  the  jury,  that 
to  constitute  an  eviction  there  must  be  something  more  than  a 
mei-e  trespass  by  the  landlord ;  there  must  be  something  of  a 
permanent  character  done  by  him,  with  the  intention  of  depriv- 
ing the  tenant  of  the  enjoyment  of  the  premises,  or  of  some 
part  thereof.  The  question  of  eviction  or  no  eviction,  is  a  ques- 
tion to  be  decided  by  the  jury,  in  view  of  all  the  facts  and 
circumstances  proved  on  the  trial. 

The  jury  are  instructed,  that  while  the  law  is,  that  if  the 
tenant  loses  the  benefit  of  the  enjoyment  of  any  material  por- 
tion of  the  demised  premises  by  the  wilful  act  of  the  landlord, 
the  rent  is  therel^y  suspended,  yet  to  have  this  effect  the  act  of 
the  landlord  must  be  something  more  than  a  mere  trespass,  it 
must  be  something  of  a  permanent  character  and  have  the  effect 
of  depriving  the  tenant  of  the  enjoyment  of  the  premises  from 
which  the  eviction  is  alleged.  Taylor's  Land,  and  Ten.,  §  380; 
Lynch  vs.  Baldwin.,  69  111.,  210. 

What  Constitutes  Eviction. — The  court  instructs  the  jury,  that 
some  acts  of  interference  by  the  landlord  with  the  tenant's 
enjoyment  of  the  premises  may  be  mere  acts  of  trespass,  or  they 
may  amount  to  an  eviction.  The  question  whether  they  partake 
of  the  latter  character  depends  upon  the  intention  with  which 
they  are  done,  and  the  character  of  the  acts.  If  they  clearly 
indicate  an  intention  on  the  landlord's  part  that  the  tenant 
should  no  longer  continue  to  hold  the  premises,  and  he  thereby 
loses  the  beneficial  use  of  the  same,  this  would  constitute  an 
eviction;  otherwise  they  would  amount  to  no  more  than  acts  of 
trespass.  Ilaynes  et  al.  vs.  Smith,  63  111.,  430 ;  Taylor's  Land, 
and  Ten.,  §  380;  Myers  vs.  Gem.mel,  10  Barb.,  537;  Hazlett 
vs.  Powell,  30  Penn.  St.,  293;  Mirich  vs.  Hojppin,  118  Mass., 
582. 

To  constitute  an  eviction  the  acts  of  interference  by  the  land- 
lord with  the  tenant's  possession  must  clearly  indicate  an  inten- 
tion, on  the  part  of  the  landlord,  that  the  tenant  shall  no  longer 
continue  to  hold  tlie  premises,  or  some  material  part  thereof. 
Morriss  vs.  Tillson,  81  111.,  607. 


192  INSTRUCTIONS 

Landlord's  Lien  for  Rent  — Illinois. — The  jury  are  instructed,  that 
the  statute  of  this  state  gives  a  landlord  a  lien  upi^n  the  crops 
grown  or  growing  upon  the  demised  premises,  in  any  year,  for 
the  rent  that  shall  accrue  for  that  year,  whether  the  rent  be 
payable  in  money,  labor,  or  a  share  of  the  crops  raised;  and  this 
lien  is  not  conhned  to  any  particular  crop,  but  eml)races  all  the 
crops,  or  any  portion  of  them,  no  matter  upon  which  particular 
part  of  the  premises  they  were  raised.  Thom/psoa  vs.  Mead, 
(>7  111.,  305. 

That  under  our  statute  the  landlord  has  a  lien  upon  the  crops 
grown  and  growing  upon  the  demised  premises,  in  any  year,  for 
the  rent  thereof  for  that  year;  and  such  lien  continues  foi-  the 
period  of  six  months  after  the  exj^iration  of  the  term  for  which 
the  premises  were  rented,  and  no  levy  of  the  crops  thus  grown, 
or  sale,  under  an  execution  against  the  tenant,  will  divest  the 
landlord  of  such  lien.     Miles  vs.  James,  36  111,,  309. 

That  the  law  of  this  state  gives  a  landlord  a  lien  upon  the 
crops  grown  or  growing  upon  the  premises,  in  any  one  year,  for 
the  rent  thereof  for  that  year,  and  it  does  not  matter  whether 
the  crops  are  raised  by  the  tenant  to  whom  the  premises  we)-e 
leased  by  the  landlord  in  the  first  instance,  or  whether  they 
were  raised  by  a  sub-tenant  under  such  prior  lease.  Uhl  vs. 
Bighton,  25  111.,  154. 

Levy  of  Distress  Warrant  not  Necessary  to  Perfect  Lien. — The  court 
instructs  the  jury,  that  the  law. gives  the  landlord  a  lien  upon 
the  crops  grown  or  growing  upon  the  rented  premises,  in  any 
one  year,  for  the  rent  of  that  year;  that  su(;h  lien  does  not 
depend  upon  the  levy  of  any  distress  warrant,  but  is  given  by 
the  statute,  and  no  creditor  of  the  tenant  can  defeat  the  land- 
lord's lien  by  levying  an  attachment  or  an  execution  upon  the 
property  before  the  issuing  of  a  distress  warrant  by  the  land- 
lord.    Mead  vs.  Thompson,  78  111.,  02. 

Lien  Against  Purchaser  from  Tenant,  When. — That  a   purchaser  of 

grain  raised  by  a  tenant,  upon  which  the  landlord  has  a  lien  for 
rent,  with  full  knowledge  of  that  fact,  and  that  the  rent  is  not 
fully  jiaid,  will  be  liable  to  the  landlord  for  the  rent  due  to  the 
extent  of  the  value  of  the  grain  purchased  by  him. 


IN    CIVIL    ACTIONS.  103 

Tlio  cdurt  instructs  the  jury,  that  the  lien  given  to  a  landlord 
upon  the  crops  grown  or  growing  upon  the  demised  premises, 
in  any  one  year,  for  the  rent  of  that  year,  cannot  be  defeated 
by  a  sale  of  such  crop,  or  any  portion  of  it,  by  the  tenant  to  a 
person  who  has  notice  of  the  fact  of  the  tenancy,  and  that  the 
crop  was  raised  on  the  premises  rented. 

And  when  a  purchaser  of  corn  from  a  tenant  knows  of  the 

fact  of  tenancy,  and  that  his  vendor,  as  sucli  tenant,  had  raised 

the  corn  on  the  demised  premises,  this  will  be  notice  to  him  of 

any  lien  the  landlord  may  have  upon  the  same  for  unpaid  rent. 

Waft  vs.  Scojield,  T6  III,  201. 

The  court  instructs  the  jury,  that  if  they  believe,  from  the 
evidence,  that  when  the  defendant  purchased  the  grain  in  cjues- 
tion  he  knew  that  A.  B.  rented  from  the  plaintiff  the  land 
whereon  the  grain  was  raised,  and  that  he  neglected  and  failed 
to  inquire  into  the  facts  regarding  the  plaintiif^s  lien  thereon,  to 
the  extent  that  a  reasonably  prudent  man  should  have  done 
under  the  circumstances  proved,  then  the  jury  should  find  for 
the  plaintiff.     Prettijmati  vs.  Unland,  77  111.,  206. 

Tenant  Holding  Over— Contract  Implied. — The  court  instructs  the 
jury,  that  when  a  tenant  holds  over  after  the  expiration  of  his 
term,  with  tlie  assent  of  the  landlord,  expressed  or  implied,  if 
there  is  no  special  agreement  to  the  contrary,  it  will  be  upon  an 
implied  agreement  or  liability  to  pay  rent  thereafter  on  the 
same  terms  as  to  amount  and  times  of  payment  as  were  provided 
in  the  original  lease.  Taylor's  Land,  and  Ten.,  §  525.  Clapp 
vs.  Nolle,  81:  111.,  62;  Weston  vs.  Weston,  102  Mass.,  514; 
Sckuyler  vs.  Smith,  51  N.  Y.,  309;  Bacon  vs.  Brown,  9  Conn,, 
334;  Finney  vs.  St.  Louis  et  al.,  39  Mo.,  177. 

That  when  a  person  rents  property  for  a  definite  period  of 
time,  as  for  a  year,  and  the  tenant  remains  in  possession  of  the 
premises,  holding  over  after  the  expiration  of  the  term  for 
which  the  property  was  rented,  and  after  a  reasonable  time  for 
surrendering  up  the  possession,  wnth  the  consent  of  the  land- 
lord, expressed  or  implied,  but  without  any  new  agreement,  the 
law  will  imjDly  a  new  leasing  for  the*same  length  of  time  as  the 
original  leasing  and  upon  the  same  terms. 

13 


194  INSTRTCTIOXS 

111  this  case,  ii'  the  jury  believe,  from  the  evidence,  that  some- 
time, or  about,  etc.,  the  defeiidaiit  leased  the  premises  in  ques- 
tion for  the  then  next  ensuing  season  {()r  year),  agreeing  to  pay 

therefor  the  sum  of  8 ;  and  if  the  jury  further  believe,  from 

the  evidence,  that  after  the  expiration  of  that  lease  the  defend- 
ant went  on  in  the  use  and  occupation  of  tlie  premises,  in  the 
same  manner  as  he  had  used  them  under  the  lease,  with  the 
consent  of  the  plaintiff,  but  Avithout  any  new  contract  between 
the  parties,  until  tlie  month  of,  etc.,  then  the  law  would   imply 

a  new  renting  for  the  season  {or  year)  of ,  upon  the  same 

terms  as  the  original  renting. 

AVhere  a  tenant  holds  over  after  the  expiration  of  his  lease,  a 
continuance  of  the  tenancy  on  the  same  terms  will  be  presumed 
against  him;  and  where  a  tenant,  from  year  to  year,  continues 
to  occui)y  and  enters  upon  another  year,  with  the  knowledge  of 
the  landlord,  without  objection  from  him,  a  tenancy  for  another 
year  is  thus  created,  upon  the  same  terms  and  conditions  as  those 
of  the  year  before, 

New  Contract  Implied,  IVlieii — That  when  a  tenant,  under  a  lease 
from  year  to  year,  is  notified  by  liis  landlord,  before  the  expira- 
tion of  his  term,  that  if  he  occupies  the  premises  another  year 
he  wall  have  to  pay  a  certain  increased  rent,  and  the  tenant 
holds  over  without  any  further  contract  or  understanding  be- 
tween the  parties,  such  act  of  holding  over  will  be  construed  as 
an  implied  agreement  that  he  will  hold  the  premises  upon  the 
new  terms  imposed.  Despard  vs.  W(dhrid<je,  15  N.  Y.,  374; 
Iliggins  vs.  Ilalligan,  46  111.,  173;  Hunt  vs.  Bailey,  39  Mo., 
257. 

Wnms^fiil  Holdiiiir  Over  — Illiiiids. — The  court  instructs  the  jury, 
that  when  a  lease  has  expired  by  its  terms  and  the  tenant  holds 
over,  such  holding,  though  intentional,  is  not  within  the  statute 
imposing  the  penalty  of  double  rent,  unless  such  holding  over  is 
knowinglv  and  wilfully  wrongful.  When  a  tenant  continues 
to  hold  over,  after  the  expiration  of  his  lease,  under  a  reason- 
able l)elief  that  he  was  doing  so  rightfully,  he  does  not  incur  the 
penalty  of  double  rent  for  holding  over. 


IN    CIVIL    ACTIONS,  195 

That  the  question  whether  the  defendant  wrongfully  held 
over  the  possession  of  the  premises  after  the  expiration  of  his 
lease,  is  a  question  of  fact  to  be  determined  by  the  jury,  from 
all  the  evidence  in  the  case;  and  though  the  jury  may  believe, 
from  the  evidence,  that  the  defendant  did  hold  over  wrongfully, 
still  if  they  further  believe,  from  the  evidence,  that  the  defend- 
ant had  reasonable  grounds  for  believing,  and  did  believe,  he 
had  a  riffht  to  hold  over,  then  he  would  not  be  liable  to  the 
penalty  of  paying  double  rent  for  the  premises.  Stewart  vs. 
Hamilton,  ^^  111.,  255. 

Tenant  Cannot  Deny  Landlord's  Title. — The  court  instructs  the 
jury,  as  a  matter  of  law,  that  a  tenant  is  not  permitted  to  deny 
the  title  of  his  landlord  to  the  premises  leased,  nor  the  title  of 
those  who  hold  under  the  landlord.  And  in  this  case,  if  the 
jury  believe,  from  the  evidence,  that  the  defendant  leased  the 
premises  in  question  from  the  mother  of  the  plaintiff,  and  took 
possession  of  the  same  under  such  lease,  and  has  not  since  sur- 
rendered up  such  possession,  then,  if  the  jury  further  believe, 
from  the  evidence,  that  the  mother  of  plaintiff  is  dead,  and  that 
she  willed  the  premises  to  the  plaintiff,  as  claimed,  then  the 
defendant  is  not  permitted  to  deny  the  plaintiff's  title,  so  long 
as  the  defendant  remains  in  such  possession. 

Landlord  not  Bound  to  Repah*. — The  jury  are  instructed,  that 
under  the  lease  introduced  in  evidence  the  landlord  was  under 
no  obligation  to  make  repairs  on  the  premises,  or  to  pay  for  any 
made  by  defendant;  and  unless  the  jury  believe,  from  the  evi- 
dence, that  some  subsequent  agreement  or  arrangement  has  been 
made  by  the  parties,  by  which  the  plaintiff  has  agreed  to  make 
such  repairs,  or  to  pay  for  those  made  by  defendant,  then  as  to 
the  question  of  repairs  the  jury  should  find  for  the  plaintiff. 

That  without  some  express  agreement  to  that  effect,  a  landlord 
is  under  no  obligation  to  make  repairs  on  the  premises  during 
the  time  for  which  they  are  leased.  Taylor's  Land,  and  Ten., 
§  327. 

Title  to  Crops. — The  title  to  the  crop  raised  on  rented  land  is 
not  in  the  landlord,  so  as  to  empower  him  to  sue  for  and  recover 


196  INSTKUCTIOXS 

upon  it  ill  trespass,  or  its  value  in  trover.  lie  lias  a  special  lien 
iilHiii  it  i^iven  by  statute,  which  may  be  enforced  by  distress  for 
rent.     Morrill  vs.  Barnes,  57  Ga.,  40-i. 

The  law  is,  in  the  case  of  a  leasing  of  land  for  a  share  of  the 
crops  raised,  to  be  divided  after  they  are  raised  and  gathered, 
that  the  title  to  the  whole  of  the  crop  will  be  and  remain  in  the 
tenant,  until  the  crop  has  been  divided  and  possession  given  to 
the  landlord  of  his  share.     Sargent  vs.  Courrier,  QC^  111.,  245. 

In  farming  on  shares,  the  tenant,  as  against  the  landlord,  is 
entitled  to  the  possession  of  the  whole  (n-op  while  it  is  growing, 
and  may  recover  damages  from  the  landlord  if  the  cattle  of  the 
latter  wrongfully  break  into  the  field  and  injure  the  crop. 
Front  vs.  Hardin,  56  Ind.,  165. 

Contra. — The  tenant,  farming  land  on  shares,  cannot  sue  the 
landlord  in  trespass  to  recover  for  injury  done  to  the  growing 
crop  by  live  stock  belonging  to  the  landlord,  for  the  parties  are 
co-tenants  of  the  property.    Wells  vs.  Ilollenheck,  37  Mich.,  504. 


LI  BE  L.— (See  Slander.) 

Plea  of  Justification  Filed If  the  jury  believe,  from  the  evi- 
dence, that  the  defendant  published  the  libel,  as  charged  in 
plaintiff's  declaration,  and  tliat  lie  has  failed  to  show,  by  a  pre- 
ponderance of  evidence,  the  truth  of  the  chai'ges  made  against 
the  plaintiff,  in  the  plea  of  justification,  then  the  jury  should 
find  a  verdict  for  plaintiff,  and  assess  his  damages  at  such  a  sum 
as  the  jury  believe,  f)'om  the  evidence,  the  plaintiff  ought  to 
recover,  not  exceeding  the  amount  claimed  in  the  declaration. 

The  court  instructs  the  jury,  that  if  they  believe,  from  the 
evidence,  that  plauitiff  has  proved  the  puldication,  as  charged 
in  his  declaration,  and  that  defendant  has  failed  to  prove,  by  a 
]>rcponderance  of  evidence,  the  truth  of  the  plea  of  justification, 
as  pleadecl  by  him,  then  and  in  such  case,  tlie  jury  should  i-ender 
their  verdict  in  favor  of  the  plaintiff  for  such  an  amount  as  they 
shall  believe,  from  the  evidence,  he  is  entitled  to  recover. 

If  the  jury  ])elieve,  from  the  evidence,  that  the  defendant 
composed  and  published  the  printed  article  in  plaiuliff's  decla- 


IN    CIVIL    ACTIONS.  197 

ration  mentioned  and  set  out,  as  therein  stated,  tlien  tlie  jury 
should  find  the  defendant  guilty,  unless  they  further  believe, 
from  the  evidence,  that  tlie  charges,  statements  and  insinuations 
in  said  printed  article  are  true,  as  stated  in  defendant's  plea. 

And  if  the  jury  find  the  defendant  guilty,  they  will  find  such 
damages  for  the  jjlaintiff  as  they  believe,  from  all  the  circum- 
stances of  the  case,  appearing  in  evidence,  he  ought  to  receive 
from  the  defendant,  not  exceeding  the  amount  claimed  In  the 
declaration. 

Malice  Presumed,  Wlien. — If  the  jury  believe,  from  the  evidence, 
that  defendant  published  the  libel  of  and  concerning  the  plain- 
tiff, as  charged  in  plaintiff's  declaration,  then  the  law  presumes 
malice  on  the  part  of  the  defendant  against  the  plaintiff,  and  it 
rests  upon  the  defendant  to  rebut  this  presumption  of  malice, 
and  if  he  has  not  done  so,  by  a  preponderance  of  evidence,  then 
the  jury  should  find  for  the  plaintiff,  unless  they  believe,  from 
the  evidence,  the  truth  of  the  facts  stated  in  the  plea  of  justifi- 
cation, filed  by  defendant. 

Plea  of  Justiflcatioii  an  Aggravation  of  Damages,  Wlien. — If  the  jury 
believe,  from  the  evidence,  that  the  plea  of  justification  in  this 
case  was  not  filed  in  good  faith,  and  with  an  honest  expectation 
that  the  same  could  be  proved,  but  was  resorted  to  for  the  pur- 
pose of  injuring  the  plaintiff,  then,  if  the  jury  find  defendant 
guilty,  they  may  regard  the  plea  of  justification  as  an  aggrava- 
tion of  the  original  offense. 

Not  an  Aggravation  of  Damages,  When. — The  jury  are  instructed, 
that  when  a  plea  of  justification  of  libelous  publications  is  filed 
^y^  in  good  faith,  and  with  an  honest  expectation  that  the  same  can 
be  proved,  and  evidence  is  introduced  honestly,  for  the  purj)Ose 
of  supporting  it,  such  evidence  may  be  considered  by  the  jury 
in  mitigation  of  damages,  even  though  it  be  insufficient  to  prove 
the  truth  of  the  plea. 

The  filing  of  a  plea  of  justification  in  this  case  does  not  neces- 
sarily aggravate  the  damages,  even  though  the  jury  find  that  it 
has  not  been  proved;  provided,  the  jury  further  believe,  from 
the  evidence,  that  defendant  filed  such  plea,  believing  in  good 


198  INSTRUCTIONS 

faitli  tliat  it  was  true,  and  that  he  coiihl  prove  it.      Thomas  vs. 
JJunaicay,  oO  IlL,  373, 

Mitijration  of  Daiiiaises. — In  the  event  that  the  jury  do  not  find 
the  plea  of  justitication  to  be  true,  but  do  find  the  defendant 
guilty,  then  the  jury,  in  estimating  the  amount  of  plaintifrs 
damages,  may  properly  take  into  considei-ation  sueh  facts,  if  any 
are  proven,  as  may  tend  to  show  whether  or  not  the  publi(;ation 
complained  of  was  made  by  defendant  in  a  homi  fide  belief  that 
the  publication  M'as  true. 

And  the  jury  nuiy  also  take  into  consideration,  in  the  estima- 
tion of  damages,  any  acts  of  the  plaintiff  connected  with  the 
publication  complained  of,  if  any  such  are  proven,  which  were 
calculated  to  provoke  the  publication. 

>o  Plea  of  Justification  Filed. — If  the  jury  believe,  from  the  evi- 
dence, that  the  defendant  published  the  libel,  as  charged  in  the 
declaration,  then  the  plaintiff  is  entitled  to  recover  in  this  suit. 

The  court  instructs  the  jury,  that  the  evidence  offered  by  the 
defendant,  in  regard  to  plaintiff's  general  character,  is  evidence, 
not  in  justification  of  the  alleged  libel,  but  in  excuse  or  extenu- 
ation, and  for  the  purpose  of  diminishing  the  amount  of  plain- 
tiffs damages.  If  the  plaintiff  has  })roved  the  publication  of 
the  libel,  as  alleged,  then  he  is  entitled  to  a  verdictt,  and  the 
amount  of  his  damages,  if  any,  is  to  be  determined  by  all  the 
evidence  in  the  case. 

General  Issue  Impliedly  Admits,  Etc. — In  this  case,  the  defendants, 
by  their  plea  of  not  guilty,  admit  that  the  plaintiff  is  not  guilty 
of  the  charge  alleged  in  the  libel,  as  set  out  in  the  declaration. 

The  jury  are  instructed,  that  all  the  evidence  admitted  regard- 
ing the  plaintifi's  general  character,  and  the  existence  of  reports 
and  rumors  affecting  it,  was  received  not  for  the  purpose  of  show- 
ing the  plaintiff  guilty  of  the  matters  referred  to,  his  innocence 
being  admitted  by  the  defendant's  plea  of  not  guilty;  this  evi- 
dence was  received  in  excuse  and  in  mitigation  of  the  plaintili's 
damages,  and  for  no  other  purpose. 


IN    CIVIL    ACTIONS.  199 


LIMITATIONS. 

Statute  a  Bar,  When. — The  court  instructs  the  jury,  that  in  cases 
like  the  one  on  trial,  unless  the  suit  is  comnienccd  within  {five) 
years  after  the  cause  of  action  accrues,  then  the  statute  of  limita- 
tions is  a  complete  bar.  And,  in  this  case,  if  the  jury  believe, 
from  the  evidence,  that  suit  was  not  commenced  within  {five) 
years  after  the  cause  of  action  accrued,  that  is  within  {five)  years 
after  the  debt  sued  for  became  due,  then  the  statute  of  limita- 
tions is  a  complete  bar  to  this  suit,  and  the  jury  must  find  for 
the  defendant;  unless  the  jury  further  believe,  from  the  evi- 
dence, that  the  defendant  has  made  a  new  promise  to  pay  the 
debt  within  {five)  years  of  the  commencement  of  the  suit. 

Payment  a  New  Promise. — If  the  jury  believe,  from  the  evi- 
dence, that  prior  to  the  spring  of,  etc.,  there  has  been  a  running- 
account  between  the  plaintiff  and  defendant,  and  that  at  that 
time  the  defendant  made  a  payment  to  the  plaintiff  upon  that 
account  generally,  then  a  suit  by  either  party  for  any  balance 
claimed  to  be  due  on  such  account  could  have  been  brought  by 
such  party  at  any  time  within  {five)  years  from  the  date  of  such 
payment. 

When  the  Statute  Begins  to  Run. — As  regards  the  defense  of  the 
statute  of  limitations  interposed  in  this  case,  the  jury  are  in- 
structed, that  if  one  person  gives  credit  to  another  until  he  gets 
into  a  certain  condition  financially,  or  until  the  haj^pening  of  a 
certain  event  or  contingency,  then  a  cause  of  action  will  not 
arise  until  the  party  gets  into  such  financial  condition,  or  until 
such  event  or  contingency  has  happened ;  and  the  statute  of 
limitations  does  not  begrin  to  rmi  until  the  cause  of  action  has 
arisen,  that  is,  until  a  suit  could  be  brought  for  the  debt.  2  Par. 
on  Cont.,  370. 

The  jury  are  instructed,  that  the  statiite  of  limitations  does 
not  begin  to  run,  in  any  case,  till  the  cause  of  action  has  accrued ; 
that  is,  not  till  the  party  has  a  right  to  sue  and  recover  on  the 
demand;  and  when  a  credit  has  been  given,  the  statute  does  not 
begin  to  run  till  the  credit  has  expired. 


200  IXSTRrCTIONS 

Aii;l.  ill  this  case,  if  the  jiirv  liclicx-c,  from  the  cvidcncL',  tliat 
CA\\  credit  \vas  i;-i\i'n  l»y  phiintilf  to  dofeiulant,  then  the  (^''"f) 
yeaivs'  liinitatiou  did  not  begin  to  run  until  the  expiration  of  that 
credit. 

Ksiniiiiiir  Acrouuts. — The  eourt  instrucls  the  jnr\',  as  a  nuutei-  of 
hiw,  that  ill  the  case  of  running  accounts  het\s'ecn  parties,  the 
date  of  the  last  transaction,  which  "was  properly  the  sul)ject 
matter  of  entry  in  such  account,  or  the  date  when  such  item 
became  payable,  is  the  time  at  which  the  right  of  action  accrues 
for  the  I'ccovery,  ])\  cither  l)arty,  of  any  hahmcc  remaining  due 
on  such  accounts. 

If  there  be  mutual  running  accounts  between  parties,  and  there 
is  any  item  for  whicli  a  credit  or  a  chai'ge  could  be  properly  made 
within  (Jive)  years  before  bringing  suit,  or  where  a  payment  has 
been  nuxde  by  one  of  the  parties  upon  tlie  account  within  (Jive) 
years,  such  credit,  charge  or  payment  is  evidence  of  a  promise 
implied  by  law  to  i)ay  the  balance  of  such  account.  And,  in  sucli 
case,  a  suit  for  such  balance,  if  brought  within  (Jive)  years  after 
such  credit,  charge  or  payment,  is  not  barred  by  the  statute  of 
limitations. 

If  the  jury  believe,  from  the  evidence,  that  there  are  mutual 
running  accounts  between  the  parties,  and  involved  in  this  suit, 
and  that  any  items  thereof  were  created  in  favor  of  the  respect- 
ive parties  within  (Jii'e)  years  }>rior  to  the  coninioncement  of 
this  suit,  then  the  statute  of  limitations  should  not  be  allowed  as 
a  bar  against  any  part  of  such  accounts,  whether  for  plaintiff  or 
defendant.  And,  in  such  case,  it  is  immaterial  whether  such 
demands,  or  any  part  thereof,  consist  of  book  accounts,  or  rest 
merely  in  memory;  neither  is  it  material,  in  such  case,  whether 
any  or  all  of  such  denuinds  consist  of  money  loaned,  goods  fur- 
nished, labor  performed,  or  for  board  oi-  I'ent.  In  either  case 
the  whole  of  su(;h  accounts  should  be  taken  into  consideration 
by  the  jury,  without  reference  to  the  statute  of  limitations. 
Angel  on  Lim.,  ^  147;  2  Greenleaf  Ev.,  §  445. 

Absence  from  the  State. — The  jury  are  instructed,  that  if  a  party 
be  out  of  the  state,  so  that  process  cannot  be  served  on  him  at, 
the  time  the  cause  of  action  accrues,  then  the  statute  does  not 


IN    CIVIL    ACTIONS.  201 

commence  to  ran  until  he  returns  within  the  state  again;  and, 
in  such  case,  it  is  not  necessary  that  the  party  shoukl  absolutely 
remove  from  the  state,  without  an  intention  of  returning.  Any 
absence  from  the  state,  when  the  cause  of  action  accrues,  sus- 
pends the  operation  of  the  statute  for  the  time  being. 

The  jury  are  instructed,  that  if  a  Jiarty  is  residing  within  thi;. 
state  wlien  the  cause  of  action  against  him  accrues,  then,  in 
order  that  his  absence  from  the  state  shall  suspend  the  operation 
of  the  statute,  it  must  appear  not  only  that  he  has  left  the  state, 
but  also  that  he  resides  out  of  the  state.     {III.  Statute.) 

Debt  Revived  by  New  Promise. — The  jury  are  instructed,  that 
where  there  has  once  been  a  legal  obligation  to  pay,  and  it  has 
become  barred  by  the  statute  of  limitations,  the  moral  obligation 
to  pay  the  debt  is  a  sufficient  consideration  to  support  a  subse- 
quent pi'omise  to  pay;  and  in  this  case,  though  the  jury  may 
find,  from  the  evidence,  as  to  any  of  the  plaintiff's  demands, 
that  the  same  were  once  due  from  the  defendant,  but  that  the 
cause  of  action  accrued  more  than  {five)  years  prior  to  the  com- 
mencement of  this  suit;  yet,  if  the  jury  further  find,  from  the 
evidence,  that  the  defendant  has,  within  the  said  period  of  {five) 
years,  promised  the  plaintiff  to  pay  such  debt,  then,  .as  to  such 
demand,  the  jury  should  find  for  the  plaintiff. 

The  Pi-omise  Must  be  a  Promise  to  Pay  the  Debt. — The  jury  are  in- 
structed, that  when  a  new  promise  is  relied  upon  to  take  a  case 
out  of  the  statute  of  limitation,  the  promise  must  be  a  promise 
to  pay  the  debt.  The  word  promise  need  not  be  used,  but 
there  must  be  language  used  from  which  a  promise  may  be 
fairly  implied. 

What  Amounts  to  a  Promise. — If  the  jury  believe,  from  the  evi- 
dence, that  the  defendant,  upon  the  occasion  when  the  new 
promise  is  claimed  to  have  been  made,  said  to  the  plaintiff,  ("  / 
know  the  debt  is  due,  and  ought  to  he  paid,'')  this  language 
would  authorize  the  jury  to  infer  a  promise  to  pay  the  debt. 

Wliat  is  Not  a  Promise. — If  the  jury  believe,  from  the  evidence, 
that  upon  the  occasion  referred  to  by  the  witnesses,  the  defend- 


202  INSTRUCTIONS 

ant  said,  (^'that  account  is  correct  ")  or  ("  T received  the  money,") 
or  ('"  /  had  the  goods,")  or  {"that  is  my  note,")  this  would  not 
alone  amount  to  a  j^roniise  to  pay  the  debt.  Ayers  vs.  Richards, 
12  in.,  140. 

Fraud  and  Deceit. — The  court  instructs  the  jui-y,  tliat  in  the 
case  of  a  claim  or  denumd  founded  on  fraud  aud  (k'ceit,  the 
statute  of  limitation  does  not  begin  to  i-un  until  after  the  fraud 
and  deceit  are  discovered  by  the  injured  })arty. 

Though  the  jury  may  believe,  from  the  evidence,  that  a  fraud 
was  practiced  upon  the  plaintiff  in  manner  and  form  as  charged 
in  his  declaration,  still,  if  the  jury  fuilher  believe,  from  tlie 
evidence,  that  the  })laintiff  discovered  the  fraud,  or  by  the  use 
of  reasonable  cai'e  aud  diligence,  could  have  discovered  it  more 
than  {Jive)  years  prior  to  the  commencement  of  this  suit,  then 
the  statute  of  limitations  constitutes  a  bar  to  the  plaintiff's  i-ight 
to  recover,  and  the  jury  should  lind  foi-  the  defendant. 

If  the  jury  believe,  from  the  evidence,  that  a  fraud  was  prac- 
ticed upon  the  plaintiff,  as  charged  in  his  declaration,  still,  if 
you  further  believe,  from  the  evideiu-e,  that  it  was  done  more 
than  {Jive)  years  prior  to  the  coiumeucement  of  this  suit,  then, 
under  the  pleadings  in  this  case,  the  statute  of  limitations  bars 
the  j)laintiff's  right  of  recovery  against  the  defendant. 


MALICIOUS     PROSECUTION. 

Wliat  Must  be  Proved. — The  court  instructs  the  jury,  that  if  they 
believe,  from  the  evidence,  that  the  defendant  maliciously  caused 
the  arrest  and  imprisonment  of  the  plaintiff,  uithout  probable 
cause,  as  alleged  in  the  declaration,  tlnni  tlu?  j'"'y  should  liud  for 
the  plaintiff,  and  assess  his  damages  at  what  they  thiuk  })ro})er, 
from  the  facts  and  circumstances  proved,  not  exceeding,  how- 
ever, the  amount  claimed  in  the  decdaration. 

If  the  jury  believe,  fi-oni  the  evidence,  that  the  defendant 
had  pi'obable  cause  to  believe  that  the  plaintiff  was  guilty  of 
the  offense  charged  against  him,  then  it  is  not  material  whether 
the  defendant  was  actuated  by  i)roper  or  improper  motives  in 
institutiug  the  crimiiuil  proceediuirs  against  the  plaintiff.     To 


IN    CIVIL    ACTIONS.  203 

authorize  a  i*ecovery  in  this  chiss  of  cases  it  must  not  only 
appear  that  the  defendant  was  actuated  by  malice,  but  the  jury 
must  further  believe,  from  the  testimony,  that  the  defendant 
had  no  probable  cause,  or  no  reasonable  ground,  to  believe  that 
the  plaintiff  was  guilty  of  the  offense  charged  against  him. 
And  the  court  further  instructs  the  jury,  that  probable  cause 
means  a  reasonable  ground  of  suspicion,  supported  by  circum- 
stances in  themselves  sufficiently  strong  to  warrant  a  reasonably 
cautious  man  in  the  belief  that  the  person  accused  is  guilty  of 
the  offense  charged.  Ames  vs.  Snider,  69  111.,  376 ;  Flickinger 
vs.  ^Yagl^er,  46  Md.,  580. 

Want  of  Probable  Cause  must  be  Proved. — The  court  instructs  the 
juiy,  that  want  of  probable  cause,  though  negative  in  its  charac- 
ter, must  be  shown  by  the  plaintiff,  by  affirmative  evidence,  and 
the  jury  have  no  right  to  infer  it  from  any  degree  of  malice 
which  may  be  proved.     Broion  vs.  Smith,  83  111.,  291. 

Charge  must  be  Wilfully  False. — To  sustain  the  charge  of  malice, 
the  criminal  charge  must  appear,  by  a  preponderance  of  the 
evidence,  to  have  been  wilfully  false.  To  sustain  a  suit  for 
malicious  prosecution,  the  facts  ought  to  be  such  as  to  satisfy 
any  unprejudiced,  reasonable  miiul  that  the  accused  had  no 
ground  for  the  prosecution,  except  his  desire  to  injure  the  ac- 
cused.    Ilarphain  vs.  WJiitnerj,  77  111.,  32. 

Arrest  Without  Probable  Cause. — If  the  jury  believe,  from  the 
evidence,  that  the  defendant  maliciously  caused  the  arrest  of  the 
plaintiff,  on  a  criminal  charge,  without  probable  cause  to  believe 
that  he  was  guilty  of  the  crime  alleged  against  him,  as  charged 
in  the  declaration,  then  the  jury  should  find  the  defendant 
guilty. 

What  is  Probable  Cause. — That  to  constitute  probable  cause  for 
a  criminal  prosecution,  there  must  be  such  reasonable  grounds 
of  suspicion,  supported  by  circumstances,  sufficiently  strong  in 
themselves,  to  warrant  an  ordinarily  cautious  man  in  the  belief 
that  the  person  arrested  is  guilty  of  the  offense  charged.  Cooley 
on  Torts,  181;  Farnam  vs.  Feeley,  56  N.  Y.,  451;  Winehiddle 
vs.  Porterfield,  9  Penn.  St.,  137;  OolUns  vs.  Ilayte^  50  111., 
353;  Fagnan  vs.  Knox,  QQ  N.  Y.,  525. 


204:  INSTKUCTIONS 

If  the  jury  believe,  from  the  evidence,  that  (lefciulaut  h.a'l 
probable  cause  to  institute  the  criiaiual  })i'()i'ee(linn's,  then  the 
plaintiff  cannot  recover  in  this  suit  ;  and  proliahle  (rause  i^ 
defined  to  be  reasonable  ground  for  suspicion,  supported  by 
circumstances  sufficiently  strong  themselves,  to  warrant  an  im- 
partial and  reasonably  cautious  man  in  the  belief  that  the  person 
accused  is  guilty  of  the  offense  ^ith  which  he  is  charged.  >Siiiith 
vs.  Zent,  59  lud.,  o(>2. 

Probable  cause  for  instituting  a  criminal  pro^^ecution  is  a 
reasonable  ground  of  suspicion,  snp})<)rted  by  circumstances 
sufficiently  strong  in  themselves  to  warrant  a  cautious  man  in 
the  belief  that  the  person  accused  is  guilty  of  the  offense 
charged.  Gallaway  vs.  Burr,  32  Mich.,  332;  Ames  vs.  Snider, 
69  IlL,  376. 

Malice  may  be  Inferred  from  Want  of  Probable  Canse. — The  court 
instructs  the  jury,  that  if  they  believe,  from  the  facts  and  cir- 
cumstances proved  on  this  trial,  that  defendant  Iiad  not  probalile 
cause  for  prosecuting  the  plaintiff,  and  that  he  did  })r()secute 
him,  as  charged  in  the  dec-laration,  then  the  jmy  may  infer 
malice  from  such  want  of  })i-obable  cause.  Cooley  on  Torts, 
185;  Ewing  vs.  Sanford,  19  Ala.,  605;  llarhrader  vs.  Moore, 
44:  Cal.,  144;  Panhett  vs.  Livermore,  5  Clark,  la.,  277;  Kruij 
vs.  Ward,  77  111.,  603;  Holliday  vs.  Sterling,  62  Mo.,  321. 

That  if  a  crinnnal  prosecution  is  shown  to  be  witliout  reason- 
able or  probable  cause,  the  jury  may  infer  malice. 

The  jury  are  instructed,  that  the  prosecution  of  a  person 
criminally,  with  any  other  motive  than  that  of  bringing  a  guilty 
person  to  justice,  is  a  malicious  prosecution.  If  made  to  pro- 
cure the  surrender  of  the  prosecutor's  note,  it  is  malicious  in  law. 

If  the  jury  believe,  from  the  evidence,  that  when  tlu'  defendant 
made  the  complaint  before  the  justice,  he  did  not  have  jirobable 
cause  to  believe  that  such  complaint  was  true,  then  the  jui-y  mav 
infer  malice,  and  express  malice  need  not  lie  proved. 

The  jury  are  instructed,  that  while  the  law  is,  that  they  may 
infer  malice  from  the  want  of  prol)ablo  cause  for  the  institution 
of  the  criminal  prosecution  against  the  plaintiff,  if  they  believe, 


IN    CIVIL    ACTIONS.  205 

from  the  evidence,  that  such  prosecution  Vv'as  commenced  vrith- 
out  probable  cause,  still,  the  jury  are  not  bound  to  infer  malice 
from  that  fact.  The  law  is,  that  malice  may  be,  but  it  is  not 
necessarily,  inferred  from  want  of  probable  cause  for  the  com- 
mencement of  a  criminal  prosecution.  Panket  vs.  Livermore, 
5  la.,  277;  Smith  vs.  Howard,  2S  la.,  51;  Cooley  on  Torts,  185. 

Burden  of  Proof  on  the  Plaintiff. — The  jury  are  instructed,  that 
to  warrant  a  conviction  in  this  case,  the  plaintiff  nnist  not  only 
prove  malice,  bat  he  must  also  show  that  there  was  no  probable 
cause  for  the  prosecution  in  question ;  and  the  defendant  is  not 
l)ound  to  prove  probable  cause  unless  the  plaintiff  has  introduced 
some  evidence  tending  to  show  the  absence  of  it.  And  though 
the  jury  may  believe,  from  the  evidence,  that  the  plaintiff  has 
shown  malice  on  the  part  of  the  defendant,  in  causing  the  crim- 
inal prosecution  in  question  to  be  commenced,  still,  if  the  jury 
further  believe  that  the  plaintiff  has  failed  to  show,  by  a  pre- 
l^onderance  of  evidence,  the  want  of  probable  cause,  then  the 
jury  should  find  for  the  defendant.     1  Hill,  on  Torts,  416. 

The  jury  are  instructed,  that  to  warrant  a  verdict  for  the 
plaintiff  in  an  action  for  malicious  prosecution,  there  must  be 
malice  on  the  part  of  the  prosecutor,  and  a  want  of  probable 
cause  for  believing  that  the  accused  is  guilty  of  the  offense 
charged.  If  the  prosecuting  witness  acts  in  good  faith,  on  evi- 
dence, whether  true  or  false,  which  is  sufficient  to  create,  in  the 
mind  of  a  reasonably  cautious  man,  a  belief  of  the  guilt  of  the 
accused,  he  is  protected  and  justified  in  commencing  the  prose- 
cution. 

The  jury  are  instructed,  that  the  information  that  will  justify 
the  making  of  a  criminal  complaint  against  another,  for  the 
purpose  of  having  him  arrested,  must  be  of  such  a  character, 
and  obtained  from  such  sources,  that  business  men  generally  of 
ordinary  care,  prudence  and  discretion,  would  feel  authorized  to 
act  upon  it  under  similar  circumstances.  And,  in  this  case,  if 
the  jury  believe,  from  the-  evidence,  that  the  defendant  made 
the  alleged  affidavit,  before  the  justice  of  the  peace,  for  the 
arrest  of  the  plaintiff,  and  that  he  was  arrested  in  consequence 
thereof,  then  it  is  a  question  of  fact  to  be  determined  by  the 


206  IXSTKUCTIOXS 

jury,  from  the  evidence,  whether  the  defeiKhuit,  whcMi  lie  m:u\v 
the  complaint,  acted  upon  such  inforuKitiou  us  men  df  ordinary 
care,  prudence  and  discretion  would  have  t'clt  warranted  in  act- 
ing upon  under  similar  circumstances.  Livinyston  vs.  Bur- 
roughs, 33  Mich.,  511. 

The  jury  are  instructed,  that  to  entitle  the  plaintiff  to  recover, 
the  jury  must  find,  from  the  evidence,  three  material  j^oints — 
first,  that  the  prosecution  complained  of  was  commenced  by  the 
defendant  through  malice;  second,  that  it  was  without  probable 
cause;  and,  third,  that  the  prosecution  was  determined  and 
ended  before  the  commencement  of  this  suit.  And  If  the  plain- 
tiff has  failed  to  show,  by  a  preponderance  of  evidence,  either 
one  of  these  three  propositions,  the  jury  shouhl  find  for  the 
defendant. 

What  is  a  Want  of  Probable  Cause. — If  the  jury  believe,  from  the 
evidence,  that  the  defendant  instituted  a  criminal  proceeding 
against  the  plaintiff,  as  charged  in  the  declaration,  and  if  they 
further  find,  from  the  evidence,  that  there  were  no  circum- 
stances connected  with  the  transaction,  out  of  which  the  pros- 
ecution grew,  and  that  no  information  regarding  it  came  to  the 
knowledge  of  defendant,  whi(di  would  warrant  a  reasonable  an<l 
prudent  man  in  believing  that  the  plaintiff  was  guilty  of  the 
charge  made  against  him,  then  there  was  no  probable  cause  for 
the  prosecution.  Mc  Williams  vs.  Jlohen,  42  Md.,  56 ;  Ilarj)- 
ham  vs.  Wldtney,  T7  111.,  32. 

Want  of  Probable  Cause  Cannot  be  Inferred  from  Proof  of  Malice.— 

The  court  instructs  the  jury,  that  in  order  to  sustain  the  action 
for  malicious  prosecution,  it  must  be  proved,  by  a  preponder- 
ance of  the  evidence,  that  the  prosecution  complained  of  was 
made  with  malice,  aiul  also  without  probable  cause;  and  if  'ootli 
these  recpiisites  are  not  so  proved,  the  jury  should  find  for  the 
defendant.  Cooley  on  Torts,  184;  Casjyersoii  \ii.  Sproule,  ^VJ 
Mo.,  39;  Center  vs.  Spring,  2  Clarke,  la.,  393 ;  Ilet/iie  vs.  Blair, 
62  N.  Y.,  19;  Slddmore  vs.  Bricher,  77  111..  li;4. 

Although  the  jury  may  believe,  from  the  evidence,  that  the 
criminal  prosecution  complained  of  was  made  by  the  defendant 
through  malice,  still  the  jury  nnist  not  infer  want  of  prolnil)le 


IN    CIVIL    ACTIONS.  207 

cause  from  such  malice.  Want  of  probable  cause  must  be  uiade 
to  appear  from  the  evidence,  or  else  the  jury  must  find  for 
defendant,  no  matter  how  malicious  the  jury  may  find  the 
defendant's  motives  to  have  been,  in  instituting  the  criminal 
prosecution. 

Not  Necessary  that  a  Crime  Should  have  been  Committed. — The  court 
instructs  the  jury,  that  to  justify  an  arrest  on  a  criminal  charge, 
it  is  not  required  that  a  crime  shall  in  fact  have  been  committed. 
If  the  facts  which  come  to  a  person's  knowledge  are  such  as  to 
create  a  belief  that  a  crime  had  been  committed  by  the  person 
charged,  in  the  mind  of  an  impartial,  reasonable  man,  this  would 
be  sufficient  to  constitute  probable  cause  for  making  an  arrest, 
althouirh  no  crime  had  in  fact  been  committed. 

If  the  jury  believe,  from  the  evidence,  that  the  defendant, 
when  he  instituted  the  prosecution  complained  of,  honestly  be- 
lieved the  plaintiff  was  guilty  of  the  offense  charged,  and  that 
defendant's  belief  was  founded  on  a  knowledge  of  circum- 
stances tending  to  show  such  guilt,  and  suificient  to  induce,  in  the 
mind  of  an  ordinarily  reasonable  and  cautious  man,  the  belief 
in  such  guilt,  then  such  belief  on  the  part  of  the  defendant 
negatives  the  idea  of  the  want  of  probable  cause. 

A  party  making  complaint  against  another,  and  procuring 
his  arrest  upon  a  criminal  charge,  is  not  bound  to  prove  his 
guilt  or  procure  the  finding  of  an  indictment  against  him,  at  the 
peril  of  being  personally  liable  in  an  action  for  damages.  If 
he  acts  upon  probable  cause,  he  is  excusable,  whatever  the  result 
of  the  prosecution. 

In  an  action  for  malicious  prosecution,  the  burden  of  proof  is 
on  the  plaintiff  to  show  that  the  defendant  acted  maliciously, 
and  without  any  reasonable  or  probable  cause.  Calef  vs. 
Thomas,  81  111.,  478. 

The  Prosecution  mnst  be  Ended. — The  jury  are  instructed,  that  in 
order  to  maintain  an  action  for  malicious  prosecution,  it  must 
appear,  from  the  evidence,  that  the  alleged  malicious  prosecu- 
tion has  been  legally  terminated.  Striking  the  case  from  the 
docket,  on  motion  of  state's  attorney,  with  leave  to  reinstate  the 


208  INSTRUCTIONS 

same,  is  not  a  legal  tenninatiuu  of  the  pi\)soc'Uii()ii.  Blaloch 
\s,.  BandalljIQ  111.,  224;  Clark  vs.  Cleveland,  (>  Hill.,  o44; 
Cardinal  vs.  Smith,  100  Mass.,  159;  Leever  vs.  Ilainmlll,  57 
Iiid.,  423. 

Discliarge  by  Justice. — That  the  fact  that  the  plaintiff  was  dis- 
charged by  the  justice  of  the  peace  before  whom  he  was  broiiglit, 
upon  the  charge  made  against  him,  is  not  such  evidence  of  a 
M'ant  of  probable  cause  as  will  alone  sustain  an  action  for  a 
malicious  prosecution.      Thorpe  vs.  Balliett,  25  111.,  ;];J0. 

Advice  of  Counsel. — If  a  party  about  to  commence  a  criminal 
prosecution  communicates  to  the  state's  attorney  all  the  material 
facts  affecting  the  (piestion  of  tlic  guilt  of  the  party  about  to  be 
accused,  which  are  known  to  him,  or  of  which  he  had  notice, 
and  then  a(;ts  upon  his  advice,  the  presumption  of  malice  is  re- 
butted, and  an  action  against  him  for  malicious  prosecution  will 
fail.  Calef  vs.  Thomas,  81  111.,  478;  Andersen  vs  Frind,  71 
111,475. 

The  court  instructs  the  jury,  as  a  matter  of  law,  that  when  a 
party  communicates  to  counsel  in  good  standing  all  the  facts 
l)caring  upon  the  guilt  of  the  accused,  of  which  he  has  knowledge, 
or  could  have  ascertained  by  reasonable  diligence,  and  in  good 
faith  acts  nj^on  the  advice  of  such  counsel  in  prosecuting  the 
party  accused,  he  cannot  be  held  responsible  for  malicious 
prosecution.  Josselyn  vs.  McAllister,  22  Mich.,  300;  Andersen 
vs.  Frind,  71  111.,  475;  Ash  vs.'Marlow,  20  Ohio,  119;  W<dter 
vs.  Sample,  25  Pa.  St.,  275;  Sharpe  vs.  Johnson,  59  Mo.,  557. 

The  court  instructs  the  jury,  that  if  they  believe,  from  the 
evidence,  that  the  defendant,  before  he  instituted  the  crimiiuil 
prosecution,  fully,  faii-ly  aiul  truthfully  stated  all  the  facts  and 
circumstances  in  relati(jn  to  the  alleged  crime,  to  respectable 
counsel,  and  that  such  (!ounsel  advised  him  that  he  had  reason- 
able cause  to  institute  the  criminal  proceedings  against  the 
})laintiff,  and  that  the  di^fendant,  in  good  faith,  acted  upon  such 
advice,  then  the  plaintiff  cannot  maintain  this  action,  whether 
the  defendant  in  the  criminal  prosecution  was  guilty  or  not;  ami 
the  jury  should  find  for  the  defendant.  Boss  vs.  lanes,  20 
111.,  259. 


IN    CIVIL    ACTIONS.  200 

The  court  instructs  the  jury,  that  whetlier  or  not  the  defend- 
ant did,  before  instituting  the  criminal  proceedings,  make  a 
full,  fair  and  honest  disclosure  to  the  attorney  of  all  the  material 
facts  bearing  upon  the  guilt  of  the  phiintiif,  of  which  he  had 
knowledge,  and  which  he  could  have  ascertained  by  reasonable 
diligence,  and  whether,  in  commencing  such  proceedings,  the 
defendant  was  acting  in  good  faith  upon  the  advice  of  his 
counsel,  are  questions  of  fact  to  be  determined  by  the  jury,  from 
all  the  evidence  and  circumstances  proved  in  the  case.  And  if 
the  jury  believe,  from  the  evidence,  that  the  defendant  did  not 
make  a  full,  fair  and  honest  disclosure  of  all  such  facts  to  his 
counsel,  then  such  advice  can  avail  him  nothing  in  this  suit. 

If  the  jury  believe,  from  the  evidence,  tliat  the  defendants 
instituted  the  criminal  prosecution  from  a  fixed  determination 
of  their  own,  rather  than  from  the  opinions  of  legal  counsel,  or 
that  a  full,  fair  and  true  statement  of  all  the  facts  known  to 
them  was  not  submitted  to  the  counsel,  then,  in  either  case,  the 
opinion  given  by  the  counsel  is  no  defense  in  this  action,  if  the 
jury  believe,  from  the  evidence,  that  the  criminal  charge  was 
false,  and  made  without  probable  cause. 

The  jury  are  instructed,  that  if  they  believe,  from  the  evi- 
dence, that  the  plaintiff  was  charged,  arrested  and  treated,  as 
stated   in   his   declaration,   and   that   the   only  ground  for  that 

charge  and  arrest  w^as  the  retention  of  the  $ ,  mentioned  by 

the  witnesses,  and  that  the  defendant  knew,  at  the  time  he  ad- 
vised with  his  attorney,  that  the  plaintiff,  in  good  faith,  claimed 
the  right  to  pay  himself  that  money  on  his  salary,  and  that  he 
did  not  state  that  fact  to  his  attorney,  then  the  attorney's  advice 
is  no  protection  to  him  in  this  suit. 

Pi-esumption  from  Good  Character. — If  the  jury  believe,  from  the 
evidence,  that  tlie  plaintiff,  up  to  the  time  of  his  arrest,  uni- 
formly bore  a  good  reputation  for  honesty  and  integrity,  and 
that  defendant  knew  his  reputation  to  be  such  up  to  tlie  time  of 
his  arrest,  then  that  fact  is  a  proper  one  to  be  considered  by  the 
jury,  in  connection  with  all  the  other  evidence  in  the  case,  in 
determining  whether  or  not  defendant  had  probable  cause  to 
believe,  and  did  believe  in  good  faith,  that  the  plaintiff  was 
guilty  of  the  crime  charged  against  him. 

14 


210  INSTRUCTIONS 


MALPRACTICE. 


A  Warranty  of  Skill,  Kuowleils?e  and  Care  Implied. — The  court  in- 
structs the  jury,  that  if  a  person  liohls  himself  out  to  the  pul)lic 
as  a  physician  and  surgeon,  he  must  be  hehl  to  possess  and  ex- 
ercise ordinary  skill,  knowledge  and  care  in  his  profession  in 
every  case  of  which  he  assumes  the  charge,  whether  in  the  par- 
ticular case  he  i-eceives  fees  or  not.  McNevins  vs.  Lome,  40  111., 
209;  1  Hill  on  Torts,  224;  McOandless  vs.  3fcWha,  22  Penn., 
261;  Simonds  \&.  Henry,  39  Me.,  155;  Geiselman  vs.  Scott, 
25  Ohio  St.,  86. 

The  jury  are  instructed,  that  where  an  injury  results  from  a 
want  of  ordinary  skill,  or  from  a  failure  toexei'cise  ordiiuiry  skill 
or  attention  in  the  treatment  of  a  case,  the  physician  or  surgeon 
is  lield  responsible  for  such  injury.  JBarnes  vs.  Means,  82 
111.,  :579.  '  ' 

That  the  highest  degree  of  care  and  skill  are  not  required  of  a 
physician  to  relieve  him  from  liability  for  damages  resulting  from 
Liis  treatment  of  a  patient — only  reasonable  care  and  skill  are 
requii'ed. 

That  while  persons,  who  hold  themselves  out  to  the  puldic  as 
physicians  and  surgeons,  are  not  required  to  possess  the  highest 
desri'ee  of  knowledo^e  and  skill  which  the  most  learned  in  their 
profession  may  have  acquired,  yet  they  are  bound  to  possess  and 
exercise,  in  their  practice,  that  degree  of  knowledge  and  skill 
which  is  ordinarily  possessed  by  physicians  and  surgeons  in 
practice.      Gramvx  vs.  Boener,  56  Ind.,  497. 

The  court  instructs  the  jury,  that  every  person  who  offers  his 
services  to  the  public  generally,  in  any  profession  or  business, 
impliedly  contracts  with  those  who  employ  him,  that  he  is  a  per- 
son of  the  skill  and  experience  which  is  possessed,  ordinarily, 
by  those  who  ju-actice,  or  profess  to  miderstand  the  same  art  or 
business,  and  which  is  generally  regaided  by  those  most  con- 
versant with  that  pi'ofession  or  employment,  as  necessary  to 
(pialify  him  to  engage  in  such  business  successfully. 

The  court  instructs  the  jury,  that  a  surgeon  who  offers  his 
services  to  the  public  as  such,  impliedly  contracts  with  his  em- 


IN    CIVIL    ACTIONS.  211 

plover,  that  he  has  ordinary  knowledge  and  skill  in  his  profes- 
sion ;  and  also,  that  he  will  use  reasonable  and  ordinary  care  and 
diligence,  in  the  exertion  and  application  of  his  skill  and  knowl- 
edge, to  accomplish  the  purpose  for  which  he  is  employed. 

If  the  jury  believe,  from  the  evidence,  that  the  defendant, 
,  held  himself  out  to  the  public  as  a  pliysician  and  sur- 
geon, and  that  he  was  employed  to  treat,  as  a  surgeon,  an  injury 
sustained  by  the  plaintiff,  as  charged  in  the  declaration,  and  that 
he  undertook  such  employment,  and  that  he  did  not  treat  the 
said  injury  with  ordinary  skill  and  knowledge,  and  that  the  plain- 
tiff sustained  any  injury  or  damage  by  reason  thereof,  then  the 
jury  should  find  for  the  plaintiff. 

If  the  jury  believe,  from  the  evidence,  that  the  plaintiff,  hav- 
ing broken  his  leg,  employed  the  defendant,  as  his  physician  and 
surgeon,  to  set  and  attend  to  the  same,  and  that  the  defendant, 
holding  himself  out  as  a  physician  and  surgeon,  undertook  and 
entered  upon  such  employment,  then  the  plaintiff  was  entitled  to 
receive  from  the  defendant  the  care,  attention  and  skill  of  an 
ordinarily  skillful  physician  and  surgeon. 

And  if,  from  the  evidence  in  the  case,  the  jury  further  believe, 
that  the  plaintiff  did  not  receive  from  the  defendant  such  care, 
attention  and  skill,  and  that  in  consequence  thereof,  and  without 
fault  on  his  part,  the  plaintiff  suffered  increased  pain,  and  suf- 
fered the  injury  complained  of  in  the  declaration,  then  the  de- 
fendant is  liable  in  this  suit,  and  the  jury  should  render  a  verdict 
for  the  plaintiff.     Kendall  vs.  Brown^  86  111.,  387. 

The  court  instructs  the  jury,  that  the  care  and  skill  a  surgeon 
should  use  in  the  practice  of  his  profession,  should  be  propor- 
tionate to  the  character  of  the  injury  he  treats,  within  the  limits 
of  all  ordinary  skill  and  knowledge,  and  if  the  jury  believe, 
from  the  evidence,  that  the  injury  in  question  was  severe,  and 

that  the  defendant, ,  did  not  treat  it  with  the  skill  and 

care  its  severity  reasonably  demanded,  within  the  limits  of  ordi- 
nary surgical  skill  and  knowledge,  and  that  the  plaintiff  was  in- 
jured by  the  want  of  such  skill  and  care,  they  will  find  for  the 
plaintiff. 

If  the  jury  believe,  from  the  evidence,  the  plaintiff  has  sus- 
tained any  injury  by  reason  of  the  unnatural  or  improper  posi- 


212  INSTRUCTIONS 

tioii  of  the  (iihia),  or  either  of  the  bones  of  the  wrist  or  forearm 
mentioned  in  the  dechiration,  and  that  such  improper  or  unnatu- 
i-al  position  of  said  bones  resulted  from  want  of  ordinary  skill, 
or  from  the  negligence  of  the  defendant,  while  treating  the  in- 
jury in  question,  as  physician  or  surgeon,  tluMi  the  defendant 
would  be  liable  in  damages  for  said  injury. 

If  the  jury  believe,  from  the  evidence,  that  during  the  time 
that  the  defendant  was  treating  the  injury  in  question,  the  prin- 
ciples and  practice  of  good  surgery  required  that  passive  motion 
should  have  been  (commenced  and  practiced  in  the  wrist  or  fin- 
gers of  said  plaintiff,  and  that  the  defendant  did  not  advise  or 
practice  such  passive  motion,  and  that  the  plaintiff  sustained 
damage  thereby,  the  defendant  would  be  liable  for  the  damage 
so  sustained. 

If  the  jury  believe,  from  the  evidence,  that  the  defendant  did 
not  use  ordinary  skill  and  diligence  as  a  surgeon,  in  the  treat- 
ment of  the  plaintiffs  injuries,  as  alleged  in  tlie  declaration  in  this 
case,  and  that,  as  a  consequence  thereof,  the  plaintiff  has  suffered 
damages,  the  jury  should  find  for  the  ])laiiitiff  and  assess  the 
damages  in  such  an  amount  as  they  believe,  from  the  evidence, 
he  has  sustained,  not  exceeding  S • 

If  the  jury  believe,  from  the  evidence,  that  the  defendant,  in 
the  treatment  of  the  injury  in  (picstion,  did  not  exhibit  the 
knowledge  and  skill  of  an  ordinary  good  surgeon,  or  did  m^t  ap- 
ply such  knowledge  and  skill  with  i-easonahle  care  and  attention, 
and  that  by  reason  thereof  the  plaintiff  suifered  damage,  it  affords 
no  excuse  to  the  defendant  that  other  surgeons  were  called  in  and 
examined  the  injury,  without  his  knowledge  or  consent,  unless  it 
appears  that  the  interference  of-  such  surgeons,  in  some  manner 
tended  to  produce  the  injurious  consequences  complained  of. 

Patient  Bound  t<»  Follow  Instructions. — The  court  instructs  the  jury, 
that  whei-e  a  pei'son  emjiloys  a  ])hysician  or  surgeon  to  treat  a 
<lisease  or  an  injury,  the  patient  is  liouud  to  adopt  and  i'ollow 
"Ut  all  reasonable  directions  and  recpiirements  of  the  physician, 
relating  to  the  treatment  or  cai'e  of  the  disease  or  injury,  and  if 
he  does  not  do  so,  and  injurious  consequences,  affecting  the  dis- 
ease or  injury,  results  from  his  failure  so  to  do,  he  cannot  recover 


IN    CIVIL    ACTIONS.  213 

of  the  physician  or  surgeon,  alleging  a  want  of  skillfulness  on 
the  part  of  the  physician  or  surgeon.  Gramm  vs.  Boenei^  50 
Inch,  497;  Geiselman  vs.  Scott,  25  Ohio  St.,  86. 

The  jury  are  further  instructed,  that  it  is  the  duty  of  a  patient 
to  cooperate  with  his  physician  or  surgeon,  and  to  conform  to 
all  reasonably  necessary  prescriptions  and  directions,  regarding 
the  care  or  treatment  of  the  disease  or  injury;  and  if  he  will 
not,  or  if,  under  the  pressure  of  pain,  he  cannot,  then  lie  cannot 
hold  his  sui-geon  responsible  for  any  injurious  consequences  aris- 
ing from  his  failure  to  obey  such  prescriptions  or  instructions,  if 
any  such  is  shown  by  the  evidence.     1  Hill,  on  Torts,  225. 

If  the  jury  find,  from  the  evidence,  that  the  defendant  di- 
rected the  plaintiff  to  observe  absolute  rest  as  a  part  of  the  treat- 
ment of  the  injury  in  question,  and  that  that  direction  was  such 
as  a  sui'geon  or  physician  of  ordinary  skill  would  adopt  or  sanc- 
tion; and  further,  that  the  plaintiff  negligently  failed  to  observe 
such  direction,  or  purposely  disregarded  the  same,  and  that  such 
neglect  or  disobedience  directly  contributed  to  the  injuries  of 
which  the  plaintiff  complains,  then  he  cannot  recover  in  this 
action,  although  the  jury  may  believe,  from  the  evidence,  that 
the  defendant's  negligence  or  want  of  skill  also  contributed  to 
such  injuries.      Geiselman  vs.  Scott,  25  Ohio  St.,  80. 

Burden  of  Proof. — The  jury  are  instructed,  that  the  plaintiff,  in 
this  case,  is  bound  to  prove,  by  a  preponderance  of  evidence,  some 
one  or  more  of  the  charo-es  of  nes^lio-ence  contained  in  the  dec- 
laration,  and  that  these  charges  relate  to  the  setting  or  reducing 
the  fracture  of  the  plaintiff's  leg,  and  also  to  the  subsequent  treat- 
ment thereof;  and  unless  the  plaintiff  has  proved,  by  a  prej)on- 
derance  of  evidence,  that  the  leg  was  not  properly  set  in  the  first 
instance,  or  that  the  subsequent  treatment  of  the  leg  by  the  de- 
fendant was  unskillful  and  improper,  to  such  an  extent  as  to  show 
want  of  ordinary  skill,  care,  or  attention  to  said  leg,  then  it  will 
be  the  duty  of  the  jury  to  render  a  verdict  for  the  defendant. 
Kendall  vs.  Brown,  86  111.,  387. 

Although  the  jury  may  believe,  from  the  evidence,  that  the 
plaintiff's  leg  became  shortened  in  consequence  of  the  fracture, 
or  during  the  course  of  treatment  subsequent  to  the  fracture, 
still  the  defendant  is  not  liable  in  damages  therefor,  unless  the 


211  INSTKUCTIONS 

shorteniiio-  was  due  to  the  want  of  reasonable  and  onlinarv  care 
and  skill  on  his  part;  and  if  the  jury  further  believe,  from  the 
evidence,  that  the  extension  of  the  limb  could  not  well  and  safely 
be  effected,  uor  the  means  and  appliances  for  that  purpose  be 
safely  used,  befoi-e  the  time  for  bony  union  to  commence,  and 
that  bony  union,  under  proper  treatment,  would  not,  and  did  not 
connnenco  before  tlie  defendant  was  discharged,  and  the  plaintiff 
placed  under  charge  of  another  sui-geon,  then  the  defendant 
would  not  be  liable  in  danuiges  resulting  from  the  shortening  of 
the  limb.     Kendall  vs.  Brown,  74  111.,  232. 

In  a  suit  against  a  surgeon  for  nialpi-actice  in  treating  an  in- 
jury, the  plaintiff  is  not  entitled  to  recover  anything  on  account 
of  the  i)ain  and  suffering  caused  by  the  injury,  but  only  for  such 
additional  pain,  suffering  and  injury  as  is  produced,  by  the  negli- 
gence or  want  of  skill  of  the  defendant,  in  the  treatment.  Wen- 
ger  vs.  Ccdder,  78  III,  275. 

[See  Measure  of  Damages.] 

MARRIED    WOMEN. 

Note.— The  following  instructions,  relating  to  the  rights  and  powers  of 
married  women,  are  mostly  adapted  to  the  laws  of  those  states  where  the 
common  law  disabililies  ot  married  women  have  been  removed  or  greatly- 
modified  by  statute.  Those  laws  vary  greatly  in  the  different  states,  and 
this  fact  must  be  borne  in  mind. 

She  May  Own,  Manage  or  Convey. — The  (•<  »urt  instructs  the  j  ury,  that 
by  the  laws  of  this  state  a  mari-icd  woiuan  nuiy  own,  in  her  owu 
right,  real  or  personal  property  obtained  by  descent,  gift  or  pur- 
chase, and  she  may  manage,  sell  and  convey  the  same  to  the 
same  extent  and  in  the  same  manner  that  her  husband  can 
property  belonging  to  him. 

The  court  instructs  the  jury,  that  since  the  year  IS —  the  hus- 
])and  does  not,  by  marriage,  ac(piire  title  to  the  money  or  prop- 
erty of  the  wife,  but  she  retains  all  her  rights  of  property,  and 
may  deal  with  the  same  as  if  she  was  unmarried.  And  money 
loaned  by  the  wife  to  the  husband  since  the  statute  of  18 — , 
whether  loaned  before  or  after  marriage,  is  a  proper  personal 
charge  against  him  while  living,  and  against  his  estate  after  his 
death.      WJdtford  vs.  Daggett,  84  111.,  144. 


IN    CIVIL    ACTIONS.  215 

Tlie  court  instructs  the  jury,  that  the  products  of  the  land  of 
a  married  woman,  the  rents  of  her  real  estate,  the  increase  from 
her  stock,  the  interest  on  her  money,  are  all  hers,  as  absolutely 
as  the  capital  or  things  from  which  they  arise. 

The  fact  that  a  crop  is  raised  on  the  land  of  a  wife,  under 
the  supervision  of  her  husband,  he  contributing  some  personal 
labor  in  controlling  and  managing  the  business,  will  not  make 
the  crop  his,  or  subject  it  to  the  payment  of  his  debts.  Bon- 
gard  vs.  Core,  82  111.,  19. 

May  Employ  Hnsbaiid  as  Agent. — That  under  the  laws  of  this  state 
a  married  woman  owning  either  real  or  personal  property,  in 
her  own  right,  may  employ  her  husband  as  her  agent  to  transact 
the  business  growing  out  of  or  relating  to  such  property,  without 
thereby  subjecting  the  property  to  the  payment  of  the  husband's 
debts. 

Although  the  jury  may  believe,  from  the  evidence,  that  the 
plaintiif,  in  the  management  of  her  farm,  availed  herself  of  the 
services  of  her  husband  as  her  agent,  and  that  he,  from  time  to 
time,  bestowed  a  portion  of  his  time  and  lal)or  in  such  manage- 
ment, still  this  alone  would  not  subject  the  farm  of  the  plaintiff, 
or  the  proceeds  thereof,  to  the  payment  of  the  husband's  debts. 
Wells  vs.  Smith,  54  G-ar.,  262. 

If  the  jury  believe,  from  the  evidence,  that  during  the  season 
of  18 —  the  plaintiff  was  the  owner  of  a  farm,  and  raised  the 
property  in  question  thereon,  and  that  the  husband  assisted  in 
raising  the  same,  still  if  the  jury  further  believe,  from  the  evi- 
dence, that  in  what  the  husband  did  he  was  simply  acting  as  the 
agent  of  his  wife,  then  tlie  property  so  raised  would  be  the 
j)roperty  of  the  wife  and  not  of  the  husband. 

The  court  instructs  the  jury,  that  the  fact,  if  proved,  that  the 
husband  uses  and  enjoys  the  separate  property  of  his  wife,  and 
out  of  it  procures  the  means  to  support  his  family,  does  not 
render  such  property  liable  for  the  debts  of  the  husband. 
Blood  vs.  Barnes,  79  111.,  437. 

The  court  instructs  the  jury,  that  the  fact,  if  proved,  that  a 
married  woman  allows  her  husband  to  have  a  general  use  and 
control  over  her  personal  property,  such  use  and  control  bein^- 


21 G  INSTRUCTIONS 

of  a  clianu'tcr  consistent  witli  their  eoiiiinoii  interests,  and  the 
proper  enjoyment  of  it  hy  hoth.  will  not  uuikc  it  liable  for  his 
debts,  or  entitle  his  administrator  to  claim  the  same.  Primmer 
vs.  Clahaugh,  78  111.,  !)4. 

The  jnry  are  instructed,  that  a  husband  may  act  as  the  agent  of 
Ids  wife  in  the  management  and  control  of  her  personal  property, 
either  generally  or  specially,  and  if  the  property  is  in  fact  the 
property  of  the  wife,  then  such  conti-ol  and  management  does 
not  alter  the  title  to  the  property  or  rendei"  it  lial)le  for  the  debts 
of  the  husband.  And,  in  this  case,  if  the  jury  believe,  from 
the  evidence,  that  the  property  was  in  fact  the  property  of  Mrs. 
G.,  then  the  fact,  if  proved,  that  her  husl)and  did  control  and 
manage  it,  will  not  make  it  liable  for  his  debts.  Brownwell  vs. 
Dixon,  ;)7  111.,  li>T. 

The  jurv  are  instructed,  that  in  this  state,  when  a  married 
woman  has  money,  or  separate  property  in  her  own  right,  her 
husband  may  act  as  her  agent  for  the  control  of  her  property  or 
the  investment  of  her  funds.  He  may  lease  her  property  and 
colle(^t  the  rents,  or  invest  her  money,  or  change  the  character 
of  her  investments,  if  authorized  by  her,  without  subjecting  her 
property  to  the  payment  of  his  debts.  Wortman  vs.  Price,  47 
111.,  '22. 

When  Liable  for  Repairs  on  House. — And,  in  this  case,  if  the  jury 
believe,  from  the  evidence,  that  the  defendant  employed  the 
plaintiff  to  perform  the  labor,  or  made  a  contract  with  him  to 
furnish  the  material  for  tin;  improvement  of  the  house  in  ques- 
tion, and  that  at  the  time  she  did  so  she  was  in  the  possession  of 
the  property,  and  then  claimed  and  represented  to  the  plaintiff 
that  she  was  the  owner  of  it;  and,  further,  that  the  plaintiff 
believed  such  representations,  and,  relying  upon  them,  after- 
wards went  on  and  performed  the  labor  and  furnished  the 
material  for  which  this  suit  is  brought,  then  the  defendant  is 
estopped  from  denying  that  she  was  the  owner  of  the  property, 
and  for  all  puri)oses  of  this  suit  she  must  be  regarded  as  the 

owner  of  the  property. 

[See  Estoppel.] 


IN    CIVIL    ACTIONS.  217 

(  Husband  May  Give  to  Wife,  When. — A  husband  out  of  debt,  or 
when  it  does  not  injure  existing  creditors,  may  settle  property 
on  his  wife,  either  by  having  it  conveyed  directly  to  her,  or  to 
another  in  trust  for  her,  and  subsequent  creditors  cannot  reach 
it,  and  the  money  in  question,  if  the  jury  believe,  from  the  evi- 
dence, that  it  was  realized  from  the  sale  of  such  property,  will 
be  hers.     Lincoln  vs.  MoLaughlin,  T-i  111.,  11. 

When  Proceeds  of  her  Farm  Belong  to  Husband. — The  court  in- 
structs the  jury,  that  although  they  may  believe,  from  the  evi- 
dence, that  the  farm  on  which  the  wheat  in  dispute  was  grown, 
was  owued  by  the  plaintiff,  still,  if  they  further  believe,  from 
the  evidence,  that  the  plaintiff's  husband,  in  his  own  right,  by 
his  own  labor,  and  that  of  his  minor  son  or  sons,  took  care  of 
and  raised  the  crops  grown  thereon,  then  such  crops  would  be 
liable  to  an  execution  against  him. 

The  court  further  instructs  the  jury,  that  although  they  be- 
lieve, from  the  evidence,  that  the  farm  on  which  the  wheat  in 
controversy  was  raised,  was  in  fact  owned  by  the  plaintiff,  still, 
if  they  further  believe,  from  the  evidence,  that  her  husband  was 
allowed  by  her  to  exercise  full  and  complete  authority  over  said 
farm — to  raise,  sell  and  dispose  of  the  products  of  said  farm  in 
his  own  name,  and  for  his  own  benefit,  and  that  the  grain  in 
question  was  raised  by  the  labor  of  the  husband  and  men  in  his 
employ,  assisted  by  his  minor  sons,  then  she  would  be  estopped 
from  denying  that  her  husband  had  an  interest  in  the  crops  so 
raised  and  grown  on  said  farm,  under  his  supervision,  and  by 
the  exertions  of  himself,  the  men  in  his  emiDloy,  and  his  minor 
son  or  sons. 

The  court  instructs  the  jury,  that  if  a  married  woman  places 
her  money  or  property  in  the  hands  of  her  husband,  for  the 
purpose  of  enabling  him  to  carry  on  a  general  business,  under 
such  circumstances  as  to  enable  him  to  obtain  credit  on  the 
faith  of  his  being  the  owner  of  such  money  or  property,  and  he 
does  thereby  obtain  credit,  then  the  entire  capital  so  embarked 
in  business,  with  the  increase  thereof,  will  be  liable  for  the  hus- 
band's debts.  Patton  vs.  Gates,  67  111.,  101;  Wilson  vs. 
Loomis.  55  111.,  352. 


218  •  INSTRUCTIONS 

Tluit  when  the  liusband,  as  the  head  of  the  family,  occupies 
and  cultivates  the  land  of  his  wife,  in  his  own  name,  then  he  is 
considered  in  law  as  occupying  the  fai-m,  with  her  consent,  for 
the  common  benefit  of  the  family.  And  the  proceeds  of  his 
toil  upon  such  land  are  as  mnch  his  property  as  though  he  had 
occupied  the  land  as  a  tenant,  and  had  rented  from  some  other 
person. 

Wliiit  >'ot  Separate  Estate  as  to  Creditors  of  Hiisbiuid. — The  jury 

are  instructed,  that  in  determining  the  issues  in  this  case,  they 
may  take  into  consideration,  together  with  all  the  other  evidence 
in  the  case,  the  circumstances  attending  the  management  and 
use  of  the  property  in  question,  before  and  at  the  time  the  same 
was  taken  on  the  {execution),  introduced  in  evidence  by  the 
defendant,  so  far  as  those  circumstances  appear  in  evidence; 
and  if,  from  all  the  evidence  in  tliQ  case,  the  jury  believe  that 
there  was  a  collusive  arrangement  or  understanding  between  the 
plaintiff  and  her  husband,  that  the  said  business  should  be  car- 
ried on,  in  the  name  of  the  plaintiff,  by  the  husband  for  his  own 
use  and  benefit;  and  further,  that  at  the  time  the  said  property 
was  taken,  the  business  was  carried  on  in  the  name  of  the  plain- 
tiff, under  such  arrangement,  by  her  husband,  for  his  use  and 
benelit,  then  such  conduct  on  the  part  of  the  }daintiff  was 
fraudulent  and  unlawful,  as  against  the  creditors  of  the  hus- 
band, and  the  jury  should  find  that  the  property  belonged  to  the 
husband. 

The  jury  are  instructed,  that  although  they  may  believe,  from 
the  evidence,  that  the  plaintiff  furnished  the  funds  with  which 
the  said  goods  were  purchased,  and  said  business  carried  on.  at 
the  time  said  prope/ty  was  taken;  still,  if  the  jury  fui-ther  be- 
lieve, from  the  evidence,  that  the  funds  so  furnished  by  the 
plaintiff,  were  placed  in  the  hands  of  her  husband  for  the  pur- 
pose of  enabling  him  to  carry  on  said  business,  for  his  use  and 
benefit,  and  that  he  was  the  sole  manager  thereof,  and  that  his 
skill  and  labor  were  devoted  to  (tarrying  on  said  business,  with- 
out any  agreement  or  arrangement  as  to  his  salary  or  compensa- 
tion, then  the  jury  are  instructed,  that  the  entire  capital  used  'in 
euid  trade  or  business,  together  with  the  increase  thereof,  cannot 


IN    CIVIL    ACTIONS.  219 

be  considered  the  separate  estate  of  the  plaintiff,  but  the  same 
became  liable  for  the  debts  of  her  husband,  and  the  property 
was  subject  to  the  execution,  offered  in  evidence,  by  the  de- 
fendants. 

Although  the  jury  may  believe,  from  the  evidence,  that  when 
the  property  in  question  was  taken  by  the  officer,  the  business 
at  the  store,  etc.,  was  being  conducted  and  carried  on  in  the 
name  of  the  plaintiff,  and  that  her  husband  claimed  to  be  acting 
only  as  the  agent  of  plaintiff;  still,  if  the  jury  also  believe,  from 
the  evidence,  that,  with  plaintiff's  knowledge  and  consent,  the 
use  of  her  name  in  carrying  on  said  business  was  only  for  the 
purpose  of  protecting  the  property  of  her  husband  from  his 
creditors,  or  was  with  the  intent,  on  her  part,  to  secure  to  him 
some  right  in  the  property,  to  the  prejudice  of  his  creditors, 
then  the  jury  are  instructed,  that  such  conduct,  on  the  part  of 
the  plaintiff,  was  fraudulent  as  to  such  creditors,  and  the  verdict 
of  the  jury  should  be  for  the  defendant. 

The  court  instructs  the  jnry,  as  a  matter  of  law,  that  if  the 
wife  advance  her  own  separate  property  or  money,  and  place 
the  same  in  the  hands  of  her  husband,  for  the  pui-pose  of  ena- 
bling him  to  carry  on  any  general  trade  or  business,  for  his  use 
and  benefit,  and  the  husband  engages  in  such  business,  and,  by 
his  labor  and  skill,  increases  the  property  or  funds  while  in  his 
hands,  then  the  entire  capital  embarked  in  the  enterprise,  to- 
gether with  the  increase,  will  not  constitute  the  separate  estate 
of  the  wife,  but  they  will  be  liable  for  the  debts  of  the  husband. 
Rohinson  vs.  Breems,  90  111.,  351. 

If  the  jury  believe,  from  the  evidence,  that  the  j^roperty  in 
question  really  belonged  to  the  defendant  in  the  execution,  but 
was  claimed  and  called  the  property  of  his  wife,  for  the  purpose 
of  covering  up  said  goods,  and  keeping  them  from  the  creditors 
of  her  husband,  then  the  jury  should  find  for  the  defendant. 
Broivnwell  vs.  Dixon^  37  111.,  197. 

If  the  jury  believe,  from  the  evidence,  that  before  and  at  the 
time  tha/t  the  property  in  question  was  taken  by  the  officer,  it 
was  in  the  possession  of  the  husband  of  the  plaintiff,  and  under 
his  exclusive  control,  then  tlie  jury  are  instructed,  that  the  fact, 
if  proved,  that   the  plaintiff  received   the  property  from  her 


220  INSTRUCTIONS 

father  tit  the  time  of  her  inarriage,  or  tliat  it  was  bought  with 
money  received  from  her  father's  estate,  is  not  alone  sufficient 
to  entitle  her  to  liold  the  property  against  the  creditors  of  her 
husband;  the  jury  must  further  believe,  from  the  evidence,  that 

she  so  received  the  property  {or  rnoney)  since  the day  of^ 

etc. 

Wife  may  Give  Property  to  her  Husband. — The  (^ourt  instructs  the 
jury,  that  although  they  may  believe,  from  the  evidence,  that 
the  notes  or  the  money  with  which  the  property  in  question  was 
bought,  was  given  to  Mrs.  dr.,  and  was  originally  hers,  still,  if 
the  jury  further  believe,  from  the  evidence,  that  Mrs.  G.  after- 
wards gave  the  said  notes  or  money  to  lier  husband  to  trade 
upon,  or  lay  out  as  he  saw  fit,  and  that  he,  with  the  said  notes 
or  money,  bought  the  property  in  question  in  his  own  name, 
Mathout  any  nnderstanding  that  the  property  should  be  hers, 
then  the  property  became  the  property  of  the  husband,  as  fai- 
as  his  creditors  are  concerned,  and  was  liable  to  the  executions 
against  him. 

Husband  Entitled  to  Earnings  of  Minor  Children. — The  court  in- 
structs tlie  jury,  tiiat  the  father  is  entitled  to  all  the  earnings  of 
his  minor  children  until  they  l)ecome  of  age.  And  so  long  as 
the  father  lives  and  resides  with  his  family,  he  is  entitled  to  the 
earnings  or  wages  of  his  minor  children. 

Work  and  Labor  by  Married  Women— Illinois. — The  court  instructs 
the  jury,  tliat  a  married  wonuin  has  the  right  to  sue  for  and  re- 
cover for  her  personal  labor,  performed  for  jiersons  other  than 
her  husband,  the  same  as  if  she  were  unmarried ;  provided,  the 
work  is  done  under  a  contract,  expressed  or  implied,  made  with 
her  and  not  with  her  husband. 

The  jury  are  further  instructed,  that  where  a  married  woman 
performs  work  and  labor  for  a  person,  not  her  husband,  under 
a  contract,  expressed  or  implied,  made  with  her,  her  husband  has 
no  legal  right  to  collect  her  wages,  except  by  her  authority,  or 
with  her  consent;  and  a  payment  to  her  husband  in  such  a  case, 
without  her  authority  or  consent,  will  be  no  defense  to  an  action 
brought  by  her  to  recover  such  wages. 


IN    CIVIL    ACTIONS.  221 

If  the  jury  believe,  from  the  evidence,  that  the  phxiiitiff  per- 
formed work  and  labor  for  the  defendant  under  a  contract,  either 
expressed  or  implied,  made  by  her,  and  that  she  has  not  been 
paid  therefor,  then  the  jury  should  find  for  the  plaintiff,  although 
they  may  believe,  from  the  evidence,  that  the  husl)and  has  been 
paid  for  the  same;  if  they  further  believe,  from  the  evidence, 
that  such  payment  was  made  without  her  consent,  and  the  bur- 
den of  proving  such  consent  is  on  the  defendant. 

The  jury  are  further  instructed,  that  they  luive  no  right  to  pre- 
sume that  the  husband  had  a  right  to  collect  or  settle  for  his 
wife's  wages  for  labor,  performed  by  her  under  a  contract,  made 
by  herself,  simply  from  the  fact  of  the  relation  of  husband  and 
wife  existing  between  tliem,  or  from  the  fact  of  their  living  and 
cohabiting  together,  as  husband  and  wife,  at  the  time. 

If  the  jury  believe,  from  the  evidence,  that  the  plaintiff  act- 
ually performed  the  services,  for  which  this  suit  is  brought,  for 
the  defendant,  and  that  at  that  time  she  had  no  knowledo-e  of 
any  contract  between  her  husband  and  the  defendant  in  relation 
to  such  services,  or  the  mode  of  payment  therefor,  then  she  would 
not  be  bound  by  any  such  contract,  even  if  the  same  has  been 
proved. 

The  court  instructs  the  jury,  that  while  it  is  the  law,  in  this 
state,  that  a  married  woman  may  receive  and  sue  for  her  own 
earnings  in  her  own  name,  yet  this  rule  only  applies  when  the 
married  woman  performs  such  labor  under  a  contract,  made  by 
herself,  either  expressed  or  implied,  with  the  person  for  whom 
the  labor  is  performed. 

The  jury  are  further  instructed,  that  if  a  husband  contracts 
with  a  person,  at  a  fixed  price,  for  the  services  of  himself  and 
M'ife,  and  the  wife,  under  such  contract,  knowingly  labors  with  her 
husband  to  carry  out  this  contract,  then  she  cannot  sue  for  and 
recover  for  services  so  rendered. 

If  the  jury  believe,  from  the  evidence,  that  the  husband  of  the 
plaintiff  made  a  contract  with  the  defendant  for  the  services  of 
himself  and  wife,  for  the  time  in  question,  and  that  the  plaintiff, 
to  carry  out  this  contract  of  her  husband,  performed  the  services 
for  which  this  suit  is  brought,  then  such  a  contract  would  be  the 
contract  of  the  husband,  and  the  plaintiff  cannot  recover  for 
jjuch  services. 


222  INSTRUCTI0N8 

Although  tlie  jnrv  may  believe,  from  the  evidence,  that  tlie 
]>huiitiff  |H'rftinii(Ml  tlu;  services  in  (jucstion,  iiiidcr  a  contracr 
made  by  herself,  still,  if  the  jury  further  believe,  from  the  evi- 
dence, that  her  husband,  before  the  commencement  of  this  suit, 
received  pay  for  such  services,  with  the  knowledge  and  consent 
of  the  plaintiff,  such  payment  is  as  effectual  for  all  purjioses  as 
if  made  to  herself,  and  she  cannot  recover  in  this  suit. 


MEASURE     OF     DAMAGES. 

Death  from  Negligent  Act. — If  the  jury  should  find,  from  the 
evidence,  that  the  defendant  is  guilty  of  the  wrongful  act,  neg- 
lect, or  default,  as  charged  in  the  plaintiffs  declaration,  andtliat 
the  same  resulted  in  the  death  of  A.,  then  the  plaintiff  is  entitled 
to  recover  in  this  action  for  the  benefit  of  the  {loidow  and  next 
of  Jdn  of  stick  deceased)  such  damages  as  the  jury  may  deem, 
from  the  evidence  and  proofs,  a  fair  and  just  compensation  there- 
for, having  reference  only  to  the  pecuniary  injuries  resulting 
from  such  death,  to  such  widow  and  next  of  kin,  not  ex(;eeding 
the  amount  claimed  in  the  declaration.  Cooley  on  Torts,  27o, 
C,  B.  &  Q.  Ed.  Co.  vs.  Payne,  adm.,  59  111.,  534;  Raffertyys,. 
SucJcman,  40  la.,  195. 

If  the  jury  find,  from  the  evidence,  under  the  instruction  of 
the  court,  that  the  defendant  is  guilty  of  the  wrongful  act,  neg- 
lect, or  default,  cliargcd  in  the  declaration  in  this  suit,  and  that 
the  same  resulted  in  the  death  of  the  deceased,  and  that  tlu^ 
plaintiff  is  entitled  to  a  verdict,  tlien  the  plaintiff  is  entitled  to 
recover,  for  the  benefit  of  the  widow  and  next  of  kin,  such  an 
amount  as  damages  as  the  jui-y  l»elieve,  from  the  evidence,  a  just 
and  fair  compensation  to  such  widow  and  next  of  kin,  having 
reference  only  to  their  pecuniary  loss,  resulting  from  such  death. 
C,  B.  &  Q.  Ed.  Co.  vs.  Pai/iM,  59  111.,  584. 

The  jury  are  instructed,  that  in  estimating  the  pecuniary  in- 
jury which  the  widow  and  children  of  the  deceased  liave  sus- 
tained by  his  death,  if  the  jury  believe,  from  the  evidence,  that 
they  have  sustained  any  injury,  for  which  the  defendant  is  lial>le 
as  explained  iu  these  instructions,  then  the  jury  have  a  right  to 


IN    CIVIL    ACTIONS. 


223 


take  into  consideration  the  support  of  the  said  widow  and  minor 
children,  and  the  instruction  and  physical,  moral  and  intellectual 
training,  as  well  as  the  ages  of  the  said  minor  children,  so  far 
as  these  matters  have  been  proved,  in  determining  the  amount  of 
damages  in  this  case.  /.  C.  Rd.  Co.  vs.  Welden,  52  111.,  290; 
Tilley  vs.  //.  R.  Rd.  Co.,  29  N.  Y.,  252;  Costello  vs.  Landwehr, 
28  Wis.,  522. 

The  pecuniary  circumstances  of  the  widow  and  children, 
whether  they  are  rich  or  poor,  cannot  increase  or  diminish  the 
amount  of  damages  which  the  plaintiff  is  entitled  to  recover  in 
this  suit;  and  in  case  the  jury  find  the  issues  for  the  plaintiff,  in 
assessing  the  damages  which  the  plaintiff  is  entitled  to  recover, 
the  jury  should  disregard  all  testimony,  and  statements  of  the 
counsel,  as  to  the  pecuniary  circumstances  of  the  widow  and 
children. 

If  the  jury  believe,  from  the  evidence,  that  the  widow  of  the 
deceased,  at  the  time  of  his  death,  and  since,  by  reason  of  ill- 
health,  has  been  unable  to  perform  labor  to  support  herself  and 
family,  this  fact  cannot  increase  or  diminish  the  amount  which 
she  is  entitled  to  recover  in  this  suit:  and  if  the  jury  should  find 
the  issues  for  the  plaintiff,  then  they  are  instructed,  in  the  assess- 
ment  of  damages,  to  disregard  all  the  testimony  in  tlie  case  as  to 
such  ill-health.     /.  C.  Rd.  Co.  vs.  BacJies,  55  111.,  379. 

In  this  case,  if  the  jury  find  for  the  plaintiff,  they  can  only 
allow  such  damages  as  will  make  good  the  pecuniary  loss  sus- 
tained by  the  person  for  whose  use  this  suit  is  brought.  The 
mental  sufferings,  or  grief  of  survivors,  or  loss  of  domestic  or 
social  happiness,  or  the  degree  of  culpability  of  the  defendant, 
are  not  proper  elements  in  the  calculation  of  damages.  The 
jury  cannot  award  exemplary  or  vindictive  damages;  they  must 
ascertain,  from  the  evidence,  the  pecuniary  loss  sustained  in 
dollars  and  cents,  as  nearly  as  they  can  approximate  thereto,  and 
make  that  good.  Kansas  PacifiG  Ry.  Co.  vs.  Cutter,  19  Kan., 
83;  BlaJie  vs.  Midland,  etc.,  Rd.  Co.,  18  Q.  B.,  93;  Oaldand& 
Co.  vs.  Fielding,  48  Penn.,  320;  Donaldson  vs.  Miss.,  etc.,  Co., 
18  la.,  280. 

The  jury  must  found  their  estimate  of  the  amount  of  such 
loss  upon  such  facts  in  proof  as  tend  to  show  the  extent  of  the 


2'24:  INSTRUCTIONS 

ptH-uiiiarv  loss  sustained,  takiiii;-  into  coiisidcnition  tlie  age  of  tlie 
deceased,  and  all  such  other  evidence  as  may  afford  them  the 
means  of  making  the  estimate.  Cltt/  of  Chicago  vs.  JIaJor,  18 
III,  349. 

Death  from  Intoxication— Suit  by  Widow. — If  the  jury  find,  from 
the  evidence,  under  the  instructions  of  the  court,  that  the  defend- 
ants, or  either  of  tliem,  are  guilty,  as  charged  in  the  detdai-ation^ 
and  that  the  plaintiff  has  suffered  actual  damages,  then  it  will  be 
the  duty  of  the  jui-y  to  assess  the  amount  of  such  actual  damages; 
and  if  the  jury  further  believe,  from  the  evidence,  that  there 
were  any  wilful,  wanton  and  aggravating  circumstances  attending 
the  sale  of  said  intoxicating  liquors,  then  the  jury  may,  in  addi- 
tion to  such  actual  damages,  find  such  further  exemplary  dam- 
ages as  they  shall  deem  proper,  not  to  exceed  in  amount  the  sum 

of  s ,  demanded  in  the  declaration. 

[See  Part  I.,  Sec.  20.] 

The  court  instructs  the  jury,  that  in  a  suit  l)y  a  wife  for  injury 
to  her  means  of  supjiort,  caused  by  selling  liquor  to  her  husband, 
she  cannot  recover  exemplary  damages,  unless  the  jury  find,  from 
the  evidence,  that  she  has  sustained  actual  damages.  Graham 
vs.  Fill  ford,  93  111.,  590;  Gilmore  vs.  Mathews,  07  Me.,  517. 

That  in  estimating  the  actual  damages  which  the  plaintiif  has 
sustained,  the  jury  should  not  take  into  considei-atioii  any  nioi-ti- 
fication  to  her  feelings,  or  mental  suffering  on  her  part;  in  esti- 
mating the  actual  damage,  the  jury  can  only  consider  the  pecu- 
niary loss,  if  any,  which  she  has  sustained,  as  sliown  by  the 
evidence.     Brantigan\^.  White,  73  111.,  r)!*)!. 

In  case  the  jury  find  the  defendants  guilty,  then,  in  estimating 
the  amount  of  actual  damages  which  the  plaintiff  has  sustained, 
if  any,  the  jury  sliould  not  take  into  account  the  anguish  or  ]iain 
of  mind,  or  feelings,  suffered  by  the  plaintiff  by  reason  of  her 
husband's  death;  nor  should  they  allow  anything  for  the  support 
and  maintenance  of  the  children,  or  for  any  loss  wliich  they  may 
have  sustained  by  the  death  of  their  father. 

Exemplary  Damages. — Altliough  tlie  jiu-y  may,  in  this  class  of 
cases,  give  exemplai-y  damages  if  they  find  the  defi-ndant  guilty, 


IN    CIVIL    ACTIONS.  225 

and  f iirtlier  find,  from  the  evidence,  that  tlie  plaintiff  has  sustained 
any  actual  damages;  yet  the  jury  cannot  give  any  damages  by 
Avay  of  punishment  to  the  defendant,  unless  they  believe,  from 
the  evidence,  that  the  plaintiff  has  sustained  some  actual  pecuniary 
damages ;  nor  should  they  give  exemplary  damages,  unless  they 
find,  from  the  evidence,  some  circumstances  of  aggravation  in 
connection  with  the  conduct  of  the  defendants  {or  some  of  them) 
calling  for  such  damages.  Bates  vs.  Davis,  76  111.,  222 ;  Meidel 
vs.  Anthis,  71  111.,  241. 

Personal  Injury  — The  jury  are  further  instructed,  that  if, 
under  the  evidence,  and  the  instructions  of  the  court,  they  find 
the  defendant  guilty,  then  in  estimating  the  plaintiff's  damages, 
if  any  are  proved,  they  have  a  right  to  take  into  consideration 
the  personal  injury  inflicted  upon  the  plaintiff  —  the  pain  and 
suffering  undergone  by  him  in  consequence  of  his  injuries,  if 
any  are  proved,  and  also  any  permanent  injury  sustained  by 
him,  if  the  jury  believe,  from  the  evidence,  that  the  plaintiff 
has  sustained  such  permanent  injury  from  the  wrongful  acts 
complained  of.  Collins  et  ux.  vs.  The  City,  etc.,  32  la.,  324; 
HoXbrooh  et  al.  vs.  The  U.  &  S.  Rd,  Co.,  2  Kern.,  23G; 
Steamer  N.  W.  vs.  King,  16  How.,  472;  Buss  et  ux.  vs.  Steam- 
hoatWar  Eagle,  14  In.,  363. 

If,  under  the  evidence  and  instructions  of  the  court,  the  jury 
find  the  defendant  guilty,  then,  in  assessing  the  plaintiff's 
damages,  the  jury  may  take  into  consideration  not  only  the  loss, 
expenses  and  immediate  damage  arising  from  the  injuries  re- 
ceived at  the  time  of  the  accident,  but  also  the  permanent  loss 
and  damage,  if  any  is  proved,  arising  from  any  disability  result- 
ing to  the  plaintiff  from  the  injury  in  question,  which  renders 
him  less  capable  of  attending  to  his  business  than  he  would 
have  been  if  the  injury  had  not  been  received. 

The  jury  are  instructed,  that  if  they  find  the  defendant  guilty, 
under  the  testimony  and  instructions  of  the  court,  then  in  assess- 
ing the  plaintiff's  damages,  the  jury  may  take  into  consideration 
not  only  the  bodily  disability  occasioned  by  the  accident,  if  any 
is  proved,  but  also  any  impairment  of  plaintiff's  mental  faculties 
and  general  health,  if  any  such  is  proved,  and  which  the  jury 

15 


226  INSTKLCTIOXS 

believe,  from  the  evidence,  -will  affect  or  impair  his  future 
ahilitv  to  attend  to  his  ordinary  business  the  same  as  if  the 
iiijui-N-  couiplaiiUMl  (if  liad  not  o(H-ni-rcd.  111.  Cent.  Rd.  Co.  vs. 
Reed,  37  III,  48-1;   Morris  vs.  C.  B.  c&  Q.  Ry.  Co.,  45  la.,  21). 

If  the  jury  believe,  from  the  evidence,  that  the  defendant  has 
been  iiijured  in  health  of  body  or  strength  of  limb,  so  that  his 
abilitv  to  liilior  and  attend  to  his  affairs,  and  generally  pursue 
the  course  of  life  lie  miglit  otherwise  have  done,  as  well  since  as 
before  the  accident;  and  if  the  jury  further  believe,  from  the 
evidence,  that  such  injui-ies  were  inflicted  upon  him  through 
the  nefi-lisence  or  carelessness  of  defendant's  servants  or  em- 
ployes,  as  charged  in  the  declaration,  and  that  the  plaintiff  was 
at  the  time  exercising  all  reasonable  care  and  caution  to  avoid 
such  injuries,  then  the  jury  may  assess  such  damages  as  will 
recompense  to  the  plaintiff  all  the  loss  he  may  have  sustained, 
as  a  necessary  result  of  such  injuries,  as  shown  by  the  evidence. 
Indianapolis  vs.  Gaston,  58  Ind.,  224. 

If,  under  the  evidence  and  instructions  of  the  court,  the  jury 
find  the  defendant  guilty,  then  in  estimating  the  plaintiff's 
damages,  it  will  be  proper  for  the  jury  to  consider  the 
eifect  of  the  injury  in  future  upon  the  plaintiff's  health,  if  they 
believe,  from  the  evidence,  that  his  future  health  will  be  affe(*ted 
by  the  injury  in  question;  and  also  the  use  of  his  liand  and  liis 
ahility  to  attend  to  his  affairs  generally,  in  pursuing  his  ordinary 
ti-ade  or  calling,  if  the  evidence  shows  that  these  will  be  affected 
iu  the  future,  and  also  the  bodily  pain  and  suffering,  the  neces- 
sary expenses  of  nursing,  and  medical  care  and  attendance,  and 
loss  of  time,  so  far  as  these  are  shown,  by  the  evidence,  and  all 
damage,  present  or  future,  which,  from  the  evidence,  cait  be 
treated  as  the  necessary  result  of  the  injury  complained  of. 
III.  Cent.  Rd.  Co.  vs.  Reed,  37  111.,  4S4;  ]V/ialen  vs.  St.  Louis, 
etc.,  Rd.  Co.,  GO  Mo.,  323. 

If  the  jury  believe,  from  the  evidence,  under  the  instruction 
of  the  court,  that  the  plaintiff  is  entitled  to  recover,  then  in 
fixiniT  the  damaires  whicli  lie  ouirlit  to  recovci",  tlic  iurv  should 
take  into  consideration  all  the  cnnnimstances  surrounding  the 
case,  so  far  as  these  ai-e  shown  by  the  evidcn(-e,  8U(;h  as  the 
circumstances    attending  the  injury,    the    loss  of    time  of    the 


IN   CIVIL   ACTIONS,  227 

plaintiff,  if  any,  occasioned  by  the  injury,  the  pain  he  has  suf- 
fered, if  any,  the  money  he  lias  expended,  if  any,  to  be  cured 
of  such  injury,  the  business  he  was  engaged  in,  if  any,  at  the 
time  he  was  injured,  and  the  extent  and  dnration  of  the  injury, 
and  give  the  phiintiff  such  damages  as  the  jury  believe,  from 
the  evidence,  he  has  sustained.  Sedg.  on  Meas,  of  Damages, 
618;  C.  R.  L  cj6  P.  Rd.  Co.  vs.  Otto,  52  111.,  416;  Little  vs. 
Tingle,  26  Ind.,  168. 

Exemplary  Damages  —  In  Tort  Generjilly. — The  jury  are  instructed, 
that  in  actions  of  this  kind,  if  the  jury  find  the  defendant  guilty, 
under  the  evidence,  and  instructions  of  the  court ;  and  if  they 
further  find,  from  the  evidence,  that  the  injury  complained  of 
was  inflicted  wilfully  or  maliciously,  and  that  the  plaintiff  has 
sustained  any  actual  damage  thereby,  then  the  jury,  in  assessing 
damages,  are  not  limited  to  mere  compensation  for  the  actual 
damage  sustained,  but  they  may  give  him  a  further  snm  by  way 
of  exemplary  or  vindictive  damages,  as  a  protection  to  the 
plaintiff,  and  as  a  salutary  example  to  others,  to  deter  them  f  i-om 
offending  in  like  manner.  Pike  vs.  Pilling,  48  Me.,  539; 
3fo  Williams  vs.  Bragg,  3  Wis.,  424;  Pibble  vs.  Morris,  26 
Conn.,  416;  Ousleg  vs.  Hardin,  23  Ilk,  403. 

Assault. — If  the  jury  believe,  from  the  evidence,  under  the 
instruction  of  the  court,  that  the  plaintiff  is  entitled  to  recover 
in  this  case,  then,  in  assessing  his  damages,  the  jury  are  at  liberty 
to  take  into  account  the  extent  of  plaintiff's  injuries,  so  far  as 
they  have  been  shown,  by  the  evidence — the  pain  and  suffering 
endured  by  him,  if  any,  in  consequence  of  such  injuries,  his  loss 
of  time,  and  the  costs  of  medical  attendance,  if  such  loss  of  time 
and  costs  have  been  proved,  and  award  such  damages  as  the  jury 
may  think  proper  and  right,  in  view  of  all  the  facts  and  circum- 
stances proved  on  the  trial. 

Exemplary  Damages  in  Assault. — The  jury  are  further  instructed, 
that  if,  under  the  evidence,  and  the  instruction  of  the  court, 
they  find  the  defendants,  or  any  of  them,  guilty  of  the  assault 
and  battery,  and  that  such  assault  and  battery  was  unj)rovoked 
by  the  plaintiff,   and  was  maliciously,  wilfully   and  wantonly 


228  INSTRUCTIONS 

coniniitted  on  the  plaintiff,  and  that  the  phiiutiff  was  seriously 
injured  and  damaged  thereby,  then  the  jurv  in  lixiiii:;  the  amount 
of  the  plaintiff's  damages,  are  not  conlined  to  the  actual  damage 
proved,  but  they  may  give  in  addition  thereto  such  exemplary 
damages,  or  smart  money,  as,  in  th€ir  judgment,  will  be  just  and 
proper,  as  a  punishment  to  the  defendant,  in  view  of  all  the  facts 
and  circumstances  proved  on  the  trial. 

That  the  defendant,  without  provocation,  assaulted  and  beat 
the  plaintiff,  as  charged  in  the  decdaration,  and  that  such  assault 
was  a  malicious,  wanton  and  aggravated  one;  and  if  the  jury  fur- 
ther believe,  from  the  evidence,  that  justice  and  the  public  good 
require  it,  then  the  law  is,  that  the  jury  are  not  confined  in  their 
verdict  to  the  actual  damages  proven,  but  they  may  give  exem- 
plary damages,  not  only  to  compensate  the  plaintiff,  but  to 
punish  the  defendant,  and  to  deter  others  from  the  commission 
of  like  offenses. 

Aggravation  of  Damages. — That  in  an  action  of  assault  and  bat- 
tery, the  insult  and  indignity  inflicted  upon  a  person,  by  giving 
him  a  blow  with  anger,  rudeness  or  insolence,  constitute  an  ele- 
ment of  damages.  And  in  this  case,  if  the  jury  believe,  from 
the  evidence,  that  the  defendant  committed  an  assault  upon  the 
idaintiff,  as  charged  in  the  declaration,  then  the  jury,  in  assess- 
ing damages,  may  consider,  as  an  aggravation  of  the  wrong,  the 
mental  suifering  and  mortification  of  feeling  of  the  plaintiff, 
arising  from  the  insult  and  indiijnitv  of  the  defendant's  blow. 

Mitigation  of  Damages The    jury   are    instructed,   that   while 

angry  and  threatening  words,  and  abusive  language,  are  no 
justification  for  an  assault  and  battery,  still  they  may  be  con- 
sidered by  the  jury  in  mitigation  of  damages,  if  it  appears,  from 
the  evidence,  that  tliey  were  used,  and  were  of  sudi  a  cliaractcr 
as  would  naturally  tend  to  excite  tlie  angry  passions  of  men,  and 
were  spoken  so  recently  before  the  assault  complained  of  as  that 
the  hot  blood  and  passion  whidi  they  were  calculated  to  excite  had 
not  had  time  to  cool.  TJrrall  vs.  KnapiK  17  la.,  4(;8;  FuUerton 
vs.  Frt;T?VZ-,  3  Blackf.,  211>. 

Exemplary  Damages  Not  Allowed,  Wlien. — Though  tlic  jury  should 
believe,  from  the  evidence,  that  the  defendants,  or  some  of  them, 


IN    CIVIL    ACTIONS.  229 

committed  the  trespasses  complained  of,  still  if  the  jury  farther 
believe,  from  the  evidence,  that  such  defendant  or  defendants 
believed  that  in  so  doing  they  were  only  asserting  what  they 
deemed  to  be  a  legal  right,  and  did  not  act  oppressively,  wan- 
tonly, or  maliciously,  then  the  jury  should  only  assess  such  sum 
as  damages  as  they  believe,  from  the  evidence,  the  plaintiff  has 
actually  sustained. 

That  while  intoxication,  of  itself,  is  no  excuse  for  an  unlawful 
act  committed  while  under  its  influence,  still  it  may  be  consid- 
ered by  the  jury  in  its  bearing  upon  the  question  of  damages. 
And,  in  this  case,  if  the  jury  believe,  from  the  evidence,  that 
an  assault  was  committed  by  defendant,  as  charged,  still,  if  they 
further  believe,  from  the  evidence,  that  the  defendant  was  so 
intoxicated  at  the  time  that  he  did  not  know  and  realize  what 
he  was  doing,  and  that  when  not  under  the  influence  of  intoxica- 
tion the  defendant  is  a  quiet  and  peaceable  citizen,  then  these 
facts  may  be  considered  by  the  jury,  with  all  the  other  evidence 
in  the  case,  in  determining  whether  he  ought  to  be  made  to  pay 
smart  money,  over  and  above  the  actual  damages  proved. 

Landlord  and  Tenant  —  Premises  not  Occupied— No  Rent  Paid. — The 

court  instructs  the  jury,  that  If  they  believe,  from  the  evidence, 
under  the  instructions  of  the  court,  that  the  plaintiff  has  a  right 
to  recover;  and  if  the  jury  further  believe,  from  the  evidence, 
that  the  plaintiff  has  paid  no  rent  for  the  premises  in  controversy, 
then  the  measure  of  damages  will  be  the  difference  between  the 
rent  agreed  to  be  paid  for  the  use  of  the  land  and  the  real  value 
of  the  use  of  the  land,  as  shown  by  the  evidence; 

The  court  further  instructs  the  jury,  that  the  rent  agreed  to 
be  paid  for  the  use  of  the  land,  as  fixed  in  the  lease,  is  presumed 
to  be  the  true  value  of  the  use  of  said  premises,  unless  the  evi- 
dence shows  it  to  be  otherwise;  and  the  agreed  price  must  be 
taken  by  the  jury  as  the  true  rental  value  of  the  premises,  for 
the  purposes  of  this  suit,  unless  the  jury  believe,  from  the 
evidence,  that  the  true  rental  value  is  more  than  the  price 
agreed  to  be  paid  therefor  by  the  plaintiff. 

That  the  measure  of  damages,  in  a  case  of  this  kind,  is  the 
difference  between  the  price  agreed  to  be  paid  for  the  use  of  the 


2o0  INSTIiUCTIOXS 

])iHMiiises,  not  occupied,  und  the  actual  rental  value  of  the  same 
prcuiisi's,  it'  tlicv  had  been  <)ccui)ied,  as  stipulated  in  the  lease; 
and,  unless  the  jury  believe,  from  the  evidence,  that  the  actual 
value  of  the  premises  was  more  than  the  rent  agreed  to  be 
paid  therefor,  then  the  plaintiff,  in  any  event,  is  only  entitled  to 
recover  nomiiuil  damages,  and  such  special  damage  as  the  jury 
believe,  from  the  evidence,  the  plaintiff  has  sustained  by  reason 
of,  etc. 

Suit  on  Replevin  IJoiid. — The  jury  are  instructed,  that  although 

this  action,  is  in  form  an  action  of  debt,  for  the  sum  of  8 ,  the 

penalty  in  the  bond,  the  action  is,  in  fact,  an  action  to  recover 
for  the  damages  alleged  to  have  been  sustained  by  the  plaintiff, 
by  reason  of  the  property  mentioned  in  said  bond  not  having 
been  returned  to  the  defendant  in  the  replevin  suit,  according  to 
the  condition  of  the  bond. 

And  if  the  jury  find  the  issues  for  the  plaintiff,  they  should, 
by  their  verdict,  find  both  the  debt  and  the  amount  of  the  dam- 

aijes;  the  debt  will  be  S ,  the  penalty  mentioned  in  the  bond, 

wliilo  the  damaiics  will  hi'  sucji  an  amount  as  the  evidence  shows 
the  parties,  for  whose  use  this  suit  is  brought,  have  sustained  by 
reason  of  the  non-return  of  said  property,  according  to  the  con- 
dition of  said  bond. 

The  jury  are  instructed,  that  if  they  find,  from  the  evidence, 
under  the  instructions  of  the  court,  that  the  plaintiff'  is  entitled 
to  a  verdict,  and  that  the  parties  for  whose  use  the  suit  is  brought, 
have  sustained  damage,  as  alleged,  then  it  will  be  the  duty  of 
the  jury  to  assess  the  amcMuit  of  such  damages;  and  if  the  jury 
further  believe,  from  the  evidence,  that  the  said  T.  M.  !>.  was 
sheriff  of  this  county  at  the  time  the  said  property  was  taken, 
and  that  the  said  sheriff  was  then  holding  the  said  property  un- 
der, and  by  virtue  of,  a  writ  of  attachment  in  favor  of  the  other 
defendants  in  the  replevin  suit,  for  an  indebtedness  claimed  to 
be  due  to  tiicm  by  one  J.  F.,  and  that  a  judgnu'iit  was  after- 
wards rendered  in  said  attachment  suit  for  the  sum  of  (four 
thousand)  dollars,  in  favor  of  the  plaintiffs  in  that  suit,  then  the 
measure  of  damages  in  this  case  is  the  said  sum  of  {four  thoustind) 
dollars,  and  interest  thereon,  at  the  rate  of  six  per  cent,  per  an- 


IN    CIVIL    ACTIONS.  231 

num.  since  tlie  date  of  said  judgment,  and  the  further  sum  of 
{tweiitij)  doUars,  defendant's  costs  in  the  said  replevin  suit;  pro- 
vided, however,  that  if  the  jury  believe,  from  the  evidence,  that 
the  vahie  of  the  property  taken  by  the  said  J.  E.,  in  the  replevin 
suit,  was  worth  less  than  the  amount  of  said  judgment,  interest, 
and  costs,  then  the  measure  of  damages  in  this  suit  will  be  the 
value  of  such  property,  as  shown  by  the  evidence,  and  no  more. 
Sedg.  on  the  Meas.  of  Dam.,  585;  Jennings  \'^.  Johnson,  17 
Ohio,  154;  Nolle  vs.  Ejyjyerly,  0  Ind.,  468;  Ilayden  vs.  Aji- 
derson^  17  la.,  158. 

The  court  instructs  the  jury,  that  if  you  find  the  issues  for  the 
plaintiif,  and  believe,  from  the  evidence,  that  the  property  in 
question  was  the  property  of  E.  L.  W.,  the  defendant,  in  the 
execution,  at  the  time  it  was  taken  by  the  sheriff,  then  in  esti- 
mating the  amount  of  damages  in  this  suit,  you  should  ascertain 
the  amount  remaining  unpaid  upon  the  judgment  in  the  case  of 
J.  G.  vs.  the  said  E.  L.  W.,  for  principal,  interest  and  costs,  as 
shown  by  the  evidence,  calculating  interest  at  the  rate  of  six  per 
cent,  per  animm,  from  the  date  of  said  judgment;  and,  then,  if 
you  believe,  from  the  evidence,  that  the  amount  thus  found  to 
be  due  upon  the  judgment  is  less  than  the  value  of  the  property 
in  question,  you  will  find  as  damages,  in  this  case,  the  sum  re- 
maining due  upon  said  judgment,  as  shown  by  the  evidence. 

On  the  other  hand,  if  you  find  the  amount  remaining  unpaid 
upon  said  judgment  to  be  equal  to  or  greater  than  the  value  of  , 
the  property  in  question,  then  you  will  find  as  damages,  in  this 
suit,  the  value  of  said  property  as  shown  by  the  evidence,  at  the 
time  it  was  taken  from  the  sheriff,  with  interest  thereon  at  the 
rate  of  six  per  cent,  per  annum. 

Libel. — If  the  jury  believe,  from  the  evidence,  that  the  libel 
was  published  by  the  defendant,  as  charged  in  the  declaration, 
then  the  plaintiff  is  entitled  to  recover.  The  amount  of  the  re- 
covery is  to  be  determined  by  the  jury,  from  a  consideration  of 
all  the  evidence  and  circumstances  proved  in  the  case;  and  in 
determining  such  amount,  the  jury  will  consider  tlie  character 
of  the  charge,  the  general  rejmtation  of  the  plaintiff  at  the  time 
of  the  publication  complained  of,  whether  the  defendants  had  an 


232  INSTKUCTIONS 

(.}»l><)i-tiniity  to  retract  tlic  charge,  whether  it  was  maliciously  uiade 
and  pci'sihted  in,  or  whether  made  as  puhlic  jounialists,  and  tor 
laudaMc  juii'ikiscs  and  without  malice,  and  all  the  facets  proved  iu 
the  case,  having  a  rel'erence  to  this  subject,  Sheahan  et  al.  vs. 
Collim,  20  111.,  325. 

If  the  jury  tin<l  the  issues  for  the  ])laintiff,  and  believe,  from 
the  evidence,  that  the  publication  wtvs  made  nuilieiously  or 
wantonly,  and  under  circumstances  evincing  a  disregard  of  the 
rio-lits  of  others,  then,  in  making  up  their  verdict,  they  may  take 
into  consideration  the  circumstances  of  the  defendant  as  to  wealth 
and  possession  of  property,  so  far  as  these  appear,  from  the  evi- 
dence, and  they  may  give  a  verdict  for  such  a  sum  as,  from  the 
evidence,  they  think  the  ])laintiff  ought  to  receive,  and  the  de- 
fendant fmght  to  pay,  under  all  the  circumstances  of  the  case. 
Hill,  on  Rem.  for  Torts,  450;  Hunt  vs.  Bennett,  19  X.  Y.,  173; 
Knifjht  vs.  Foster,  39  N.  II.,  570;  Humphries  vs.  Parker,  52 
Me.,  502. 

Malpractice. — If  the  jury  find,  under  the  evidence,  and  tlie  in- 
structions of  the  court,  that  the  plaintiff  is  entitled  to  re<-over, 
then  in  fixing  the  amount  of  damages,  they  should  take  into 
account  the  present  and  future  loss  of  the  plaintiff's  hand,  if  any 
such  loss  has  been  proved,  as  well  as  compensaticm  for  the  pain 
and  suffering  endured  by  the  plaintiff  in  consccpience  <»f  the  want 

of  skill,  care  and  diligence  of  the  defendant ,  as  shown 

by  the  evidence,  and  as  charged  in  the  declaration,  if  the  proof 
shows  such  loss  and  suifering  was  endured  in  consequence  of  the 
fault  of  the  defendant. 

Breach  of  Marriajre  fontract. — The  jury  are  instructed,  that  in 
assessing  damages  for  the  brcsach  of  a  marriage  contract,  the 
general  rule  is,  that  the  jury  may  take  into  consideration  all  the 
injnrv,  wliii-h  tlu;  evidence  sIkjws,  the  plaintiff  has  sustained, 
and  no  more;  and  in  this  case,  if  the  jury  find  the  issues  for  the 
plaintiff,  the  jury  may  take  into  consideration  the  character  and 
habits  of  the  plaintiff,  so  far  as  they  are  proved  by  the  evidence; 
and  if  the  jury  believe,  from  the  evidence,  that  at  the  time  of 
the  alleged  breach  of  contract,  the  plaintiff  was  addicted  to 
lewdness,  drunkenness,  or  to  the  use  of  profane  language,  then 


IN    CIVIL    ACTIONS.  233 

these  circumstances  should  be  considered  by  the  jury  in  esti- 
mating the  injuries  sustained  by  lier.  Sedg.  on  Meas.  of  Dam., 
428 ;  Burnett  vs.  Simpkins,  24  IlL,  264. 

If  the  jury  believe,  from  the  evidence,  that  the  defendant 
entered  into  a  marriage  contract  with  the  plaintifP,  and  also  that 
he  did  seduce  her,  then  they  have  a  right  to  determine,  from  all 
the  facts  and  circumstances,  whether  such  seduction  was  conse- 
quent ujion  the  promise  of  marriage,  and  if  they  so  find,  then 
the,  seduction  may  be  taken  by  the  jury  in  aggravation  of  the 
damages  in  this  case,  provided  they  find  for  the  plaintiff  under 
the  first  {or  other  appropriate)  count  of  the  declaration. 

In  this  suit,  if  the  jury  believe,  from  the  evidence,  that  the 
defendant  entered  into  a  marriage  contract  with  the  plaintiff, 
and  afterwards  refused  to  carry  out  the  same,  as  charged  in  the 
declaration,  and  further,  that  the  defendant,  under  such  prom- 
ise of  marriage,  seduced  the  plaintiif  and  begot  her  with  child, 
then  that  circumstance  may  be  taken  into  account  by  the  jury 
in  estimating  the  plaintiff's  damages.  Tiibhs  vs.  YanKleek^  12 
111.,  446. 

If  the  jury  believe,  from  the  evidence,  that  the  defendant  en- 
tered into  a  marriage  contract  with  the  plaintiff,  within  five  years 
before  the  commencement  of  this  suit,  and  that  under  the  pre- 
tense of  such  promise  of  marriage,  lie  seduced  and  got  the 
plaintiff  with  child,  and  then  neglected  and  refused  to  marry  the 
plaintiff,  these  circumstances  and  such  violation  of  faith  may  be 
taken  into  consideration  by  the  jury  in  estimating  the  plaintiff's 
damages. 

If  the  jury  believe,  from  the  evidence,  that  the  defendant  in 
this  case  has  attempted  to  prove  that  the  plaintiff  was  a  lewd  or 
base  woman,  and  was  of  immoral  or  bad  character,  and  that  he 
has  failed  to  establish  and  prove  the  same  by  a  preponderance 
of  evidence,  and  that  such  attempt  was  not  made  in  good  faith, 
or  was  made  without  any  reasonable  hope  or  expectation  of 
establishing  such  facts,  then  such  charge  and  failure  on  the  part 
of  the  defendant  may  be  taken  in  aggravation  of  the  damages 
in  this  case;  provided,  the  jury  find  the  issues  for  the  plaintiff. 
Sedg.  on  Meas.  of  Dam.,  427;  Fidler  vs.  McKinleij,  21  111.,  308; 
Davis  vs.  Slagle,  27  Mo.,  600;  Denslow  vs.  Van  Horn,  16  la., 
476. 


234  INSTRUCTIONS 

Tlie  jury  are  instructed,  that  should  they  find  iov  the  plaintiff, 
tliey  alone  are  the  judges  of  the  amount  of  damages  to  be  found, 
and  in  fixing  the  amount  of  such  damages,  the  jury  may  take 
into  consideraticm  the  length  of  time  the  parties  were  acquainted, 
the  degree  of  intimacy  existing  between  them,  so  far  as  proved, 
and  all  the  injuries  shown  to  have  been  sustained,  whether  they 
be  from  anguish  of  mind,  blighted  affections,  or  disappointed 
hopes,  and  fix  the  amount  of  sucli  damages  at  such  a  sum  as 
they  think  proper,  under  the  evidence  and  the  instruction  of  the 
court.  Sedg.  on  Meas.  of  Dam,,  235,  420;  Kniffea  vs.  Mc Con- 
nelly 30  N.  Y.,  285 ;  King  vs.  Kersey,  2  Ind.,  402 ;  Roper  vs.  Clay, 
IS  Mo.,  383. 

Fraud  and  Deceit. — The  jury  are  instructed,  that  in  an  action 
founded  in  fraud  and  deceit,  if  the  jury  find  the  defendant 
guilty,  the  aniounlr  of  recovery  is  not  necessarily  confined  or 
limited  to  the  actual  damages  sustained.  If  the  fraud  or  deceit 
is  shown,  by  the  evidence,  to  have  been  deliberate,  wilful  and 
wanton,  the  jury  are  at  liberty  to  give  exemplary  or  punative 
damages,  in  addition  to  the  actual  damages  sustained.  JfcAvoy 
vs.  ]Vr!;//,f,  25  Ind.,  22. 

The  jury  are  instructed,  that  if  they  find  the  defendants,  or 
either  of  them,  guilty,  then  the  measure  of  the  actual  damage, 
if  any,  sustained  by  the  plaintiff,  is  the  difference  between  the 
actual  value  of  the  property  in  question,  in  the  condition  it  was 
in  when  sold,  and  the  value  of  the  same  property  if  it  had  been 
as  stated  and  re[)resented  by  the  defendant,  at  tlie  time  of  the 
sale.  Sedg.  on  Meas.  of  Dam.,  338;  Thompson  vs.  Burgey,  3G 
Penn.,  403;  Page  vs.  Parker,  40  N.  II.,  47. 

Trespass  and  Trover. — The  court  instructs  the  jury,  tliat  wliore 
property,  taken  l)y  a  trespasser,  has  been  appropriated  to  the 
owner's  use  by  his  consent,  either  expressed  or  implied,  that  fact 
should  go  in  reduction  of  damages. 

And  such  consent  is  always  implied  when  the  property  has 
been  legally  seized  and  held  under  legal  process,  either  in  favor 
of  a  stranger  or  in  favor  of  the  trespasser  himself.  Bates  vs. 
Courtw right,  3G  111.,  518. 


IN    CIVIL    ACTIONS.  235 

If,  under  the  evidence  and  the  instruction  of  the  court,  the 
jury  find  the  defendant  guilty  of  the  taking  and  conversion  of 
the  property  in  question,  in  manner  and.  forui  as  charged  in  the 
declaration,  then  the  measure  of  the  phaintiff's  damages  is  the 
value  of  the  property  at  the  tiuie  of  the  conversion,  as  shown 
by  a  preponderance  of  the  evidence,  with  six  per  cent,  interest 
thereon,  from  the  time  of  such  conversion.  Sedg.  on  Meas. 
Dam.,  547;  Ten ne ;/  vi^.  State  Bank,  etc., ^iO  ^\s.,  la'2;  Yates 
vs.  Mullen,  24  Ind.,  277;  Polk  vs.  Allen,  19  Mo.,  4G7;  Catting 
vs.  Fanning,  2  la.,  580;  Repley  vs.  Davis,  15  Mich.,  75. 

Work  and  Labor— Part  Performance If  the  jury,  etc.,  that  the 

plaintiff  worked  for  the  defendant,  as  claimed,  and  that  such 
work  was  done  under  a  special  contract,  as  to  the  price,  and  that 
the  plaintiff  went  on  and  performed,  under  that  contract,  a  part 
of  the  work  so  contracted  for,  and  that  the  defendant  accepted 
the  work  done,  and  if  the  jury  find,  from  the  evidence,  under 
the  instructions  of  the  court,  that  the  plaintiff  is  entitled  to 
recover,  then  the  contract  price  must  govern  the  measure  of  com- 
pensation to  which  the  plaintiff  will  be  entitled  for  the  work 
actually  done,  whether  such  price  be  more  or  less  than  the  work 
was  actually  worth. 

Contract  to  Deliver— Part  Performance — If  the  jury,  etc.,  that  the 
plaintiff  agreed  to  furnish  defendant  a  certain  {quantity  of 
stone),  at  a  given  price  per  {cord),  and  that  he  furnished  a  part 
only  of  the  {stone),  but  not  the  whole  quantity  contracted  for, 
and  that  the  defendant  accepted  and  appropriated  to  his  own 
use  the  {stone)  thus  furnished,  and  if  the  jury  find,  from  the 
evidence,  under  the  instruction  of  the  court,  that  the  plaintiff  is 
entitled  to  recover  anything,  then  the  jury  are  instructed,  that 
the  contract  price  must  govern  as  to  the  price  of  the  {stone) 
actually  delivered,  whether  such  price  be  more  or  less  than  they 
were  reasonably  worth.     McClelland  vs.  Snider,  18  111.,  58. 

Refusal  to  Deliver  Personal  Property. — In  this  case,  if  the  jury, 
under  the  evidence  and  the  instruction  of  the  court,  find  the 
issues  for  the  plaintiff,  then  the  measure  of  damage  is  the  differ- 
ence between  the  contract  price  and  the  market  price,  at  the 


236  INSTRUCTIONS 

place  of  delivery,  at  the  time  of  the  alleged  breach  of  contract 
complained  of.  And  in  arriving  at  the  amount  of  damages,  the 
jury  will  estimate  the  (juantity  of  {hops)  which  has  not  been 
delivered,  and  give  the  difference  between  the  market  price  and 
the  contract  price  on  so  much  of  the  contract  as  the  jury  be- 
lieve, from  the  evidence,  remains  to  be  performed.  Sedg.  or. 
Meas.  Dam.,  295;  Carney  vs.  JSfcichemj,'!-^  111.,  2(j;i;  Bunh  \>. 
Holmes,  53  Me.,  417;  Cannon  vs.  Folsom,  2  la.,  101;  Crosby 
vs.  WatJdns,  12  Cal.,  85;  Zehner  vs.  Dale,  25  Ind.,  -1:33. 

The  jury  are  further  instructed,  that  upon  a  breach  of  a  con- 
tract to  deliver  articles  of  personal  property,  at  a  particular 
place,  within  a  certain  time,  at  a  certain  price,  and  when  the 
property  has  been  paid  for,  and  subsequently  delivered,  l)Ut  not 
deli\-ered  within  the  specified  time,  the  measure  of  damages  is' 
the  difference  in  the  value  of  the  property  at  such  place,  at  the 
time  of  actual  delivery,  and  its  market  value  at  the  same  place, 
at  the  time  fixed  in  the  contract  for  delivery. 

If  the  jury  believe,  from  the  evidence,  that  a  contract  was 
entered  into  by  the  defendant,  as  alleged  in  j)laintiff's  declara- 
tion, for  the  sale  of  {thirty  thousand  bric/i),  at  the  price  of  s — 
(j)er  thoiisa7i(l),  to  be  delivered  on  demand,  and  that  the  plain- 
tiff demanded  said  brick,  as  claimed  by  him,  and  that  he  was 
then  ready  and  willing  to  pay  for  the  same,  and  that  upon  such 
demand  the  defendant  refused  to  deliver  the  brick,  then,  if  you 
further  believe,  from  the  evidence,  that  the  market  price  of  the 
same  kind  of  brick,  at  the  time  and  place  of  such  demand,  was 
greater  than  the  contract  price,  the  measure  of  damages  will  be 
the  diff(!reiice  between  such  market  price  and  the  price  agreed 
upon.     /Slduter  vs.  Wallbaum,  45  111.,  43. 

Property  Bought  for  Re-Sale If,  under  the   evidence  in  the 

case,  and  the  instructions  of  the  court,  you  find  for  the  plain- 
tiffs, then,  upon  the  question  of  damages,  the  court  instructs 
you,  that  if  you  believe,  from  the  evidence,  that  at  the  time  of 
said  sale  the  plaintiffs  had  a  contract  for  the  re-sale  of  said  hams 
at  {Salt  Lahe  City),  and  that  they  had  sold  the  same  as  of  the 
quality  aforesaid,  and  that  at  the  time  of  the  sale  to  the  plain- 
tiffs the  defendants  had  knowledge  of  such  contract  of  re-sale, 


IN    CIVIL    ACTIONS.  237 

and  knew  that  the  plaintiffs  purchased  said  hams  to  fill  said 
contract  of  re-sale,  and  that  the  hams  were  shipped  to  the  pur- 
chaser at  {Salt  Lake)  before  the  plaintiffs  had  notice  of  their  qual- 
ity, and  that  upon  their  arrival  at  {Scdt  Lake)  the  said  purchasers 
refused  to  receive  or  pay  for  the  same,  for  the  reason,  that  they 
w^ere  not,  at  the  time  of  their  shipment  to  him,  of  the  quality 
he  had  bargained  for,  then  you  will  award  to  the  plaintiffs,  as 
damages,  such  sum  of  money  as  you  may  believe,  from  the  evi- 
dence, the  plaintiffs  had  re- sold  the  said  hams  for,  less  such  sum 
as  you  may  believe,  from  the  evidence,  said  hams  were  actually 
worth  at  the  time  of  their  purchase  by  the  plaintiffs;  and  you 
will  further  allow  the  plaintiffs  such  sums  of  money,  if  any,  as 
you  may  believe,  from  the  evidence,  they  were  obliged  (o  pay 
out  on  account  of  the  transportation  of  said  hams  to  {Salt  Lake 
City.)     Thome  vs.  McVeagh,  75  111.,  81. 

Refusal  to  Accept  Personal  Property. — The  jury  are  instructed, 
that  the  rule  of  law  is,  that  when  a  purchaser  of  personal  prop- 
erty whicli,  by  the  terms  of  the  purchase,  is  to  be  delivered  at  a 
specified  time  and  place,  and  at  a  stipulated  price,  refuses  to 
receive  and  pay  for  the  property,  and  no  part  of  the  purchase 
price  had  been  paid,  and  if  the  price  has,  in  the  meantime,  de- 
clined, then  in  an  action  by  the  vendor  against  the  vendee  for 
refusing  to  comply  with  contract,  the  proper  rule  of  damages  is, 
the  difference  between  the  contract  price  and  the  current  price 
at  the  time  and  place  for  delivery,  as  fixed  by  the  contract  of 
sale  and  purchase.     MoN'aught  vs.  Dodson,  49  111.,  446. 

Slander— Words  Actionable,  per  se. — If,  from  the  evidence,  under 
the  instructions  of  the  court,  the  jury  find  the  defendant  guilty, 
then  the  jury  are  to  determine,  from  all  the  circumstances  of  the 
case,  as  proved  on  the  trial,  what  damages  ought  to  be  given  to 
the  plaintiff,  and  find  their  verdict  accordingly.  1  Hill,  on 
Torts,  408, 

The  jury  are  further  instructed,  that  if,  from  the  evidence, 
under  the  instruction  of  the  court,  they  find  the  defendant 
guilty,  then,  in  fixing  the  amount  of  the  plaintiff's  damages, 
they  may  take  into  consideration  the  mental  suffering  produced 
by  the  utterance  of  the  slanderous  words,  if  they  believe,  from 


238  IX ST RUCTIONS 

the  evidence,  that  such  suffering  ha>  been  endured  by  the  phain- 
tiff;  and  the  present  and  probable  future  injury,  if  any,  to 
plaintiff's  character,  which  the  uttering  of  the  words  was  cal- 
culated to  inflict.  Fry  vs.  Bennett,  4  Duer.,  247;  True  vs. 
Fluiiiley,  30  Me.,  4G0;  Svnft  vs.  Diehermann,  31  Conn.,  285. 

Dainii^es  Presumed,  AVlieu. — In  an  action  for  slander,  the  law 
implies  damages  from  the  speaking  of  actionable  words.  And 
also  that  the  defendant  intended  the  injury  the  slander  is  cal- 
culated to  effect.  And  in  this  case,  if  the  jury  believe,  from 
the  evidence,  and  under  the  instructions  of  the  court,  that  the 
defendant  is  guilty,  as  charged  in  the  declaration,  then  they  are 
to  determine,  from  all  the  facts  and  circumstances  proved,  what 
damages  ought  to  be  given;  and  the  jury  are  not  confined  to  the 
mere  pecuniary  loss  or  injury  sustained.  Mental  suffering,  in- 
jury to  reputation  or  character,  if  proved,  are  proper  elements  of 
damage.     Baker  vs.  Yoimg,  44  111.,  42. 

Pecuniary  Ch-ciiinstances  of  Defendant. — The  jury  are  instructed, 
that  if  they  find  the  defendant  guilty,  then,  in  fixing  the  amount 
of  plaintiffs  damages,  they  may  take  into  consideration,  in  con- 
nection M'ith  all  the  other  evidence  in  the  case,  the  pecuniary 
circumstances  and  social  standing  of  the  defendant,  and  the 
character  and  standing  of  the  plaintiff,  so  far  as  those  have  been 
shown  by  the  evidence ;  and  they  may  also  take  into  consideration 
the  fact,  if  proved,  that  the  defendant  has  reiterated  the  slander 
on  different  occasions  to  diff-erent  persons.  JTarhison  vs.  Schoak, 
41111,141;  ILcm2)hries  y&.  Parker,  52  Me.,  502;  Leiois  vs. 
Chapman,  19  Barb.,  X.  Y.,  252. 

Words  Spoken  in  Heat  of  Passion. — If  the  jury  believe,  from  tlie 
evidence,  that  any  of  the  slandennis  words,  charged  in  tlic 
declaration,  were  spoken  by  the  defendant,  in  the  heat  of  pas- 
sion, in  a  quarrel  or  altercation,  provoked  by  the  plaintiff,  then 
the  jury  have  a  right  to  take  this  fact  into  consideration  in  fixing 
the  amount  of  damages. 

If  the  jury  believe,  from  the  evidence,  that  the  slanderous 
words  were  spoken  in  the  lieat  of  passion,  provoked  by  ])1aintiff, 
and  were  sjjoken  in  the  presence  of  persons  well  acipuiinted 


IN    CIVIL    ACTIONS.  239 

with  the  pLahitlff,  and  were  not  circuhxtecl  by  defendant  after- 
wards; and  farther,  that  the  pLiintiff  has  not,  in  fact,  been 
injured  by  the  speaking  of  the  words,  then  the  facts  may  be 
taken  into  account  by  the  jury  in  fixing  the  amount  of  plaintiff's 
damages. 

Drunkenness  in  ^litigation. — The  court  instructs  the  jury,  that  if 
you  find,  from  the  evidence,  that  the  defendant  is  guilty  of 
speaking  the  slanderous  words,  as  charged  in  the  declaration; 
that  the  defendant  was  at  the  time  intoxicated  with  spirituous 
liquors  to  such  an  extent  as  to  deprive  him  of  the  rational  exer- 
cise of  his  mental  faculties,  this  fact  will  be  proper  to  be  con- 
sidered by  the  jury  in  determining  whether  the  defendant  was 
prompted  in  sjDeakiug  the  words  by  malice,  in  fact,  and  whether 
he  ought  to  be  charged  with  exemplary  or  punative  damages. 
Howell  vs.  Hoioell,  10  Ired.,  N.  C,  84;  Gates  vs.  Meredith,  7 
Ind.,  440. 

Plea  Must  be  Filed  in  Good  Faith. — If  the  jury  believe,  from  the 
evidence,  and  from  the  facts  and  circumstances  proved  on  the 
trial,  that  when  the  defendant  filed  his  plea  of  justification,  he 
had  no  reasonable  hope  or  expectation  of  proving  the  truth  of 
it,  then  if  the  jury  believe,  from  the  evidence,  that  the  defend- 
ant is  guilty  of  the  slander  charged  in  the  declaration,  they  may, 
in  fixing  the  amount  of  the  plaintiff's  damages,  regard  the  filing 
of  the  plea  as  an  aggravation  of  the  original  slander.  Tlarhison 
vs.  Schook,  41  111.,  141;  Swails  vs.  Butcher,  2  Ind.,  84. 

The  court  instructs  the  jury,  tliat  although  they  should  find, 
from  the  evidence,  that  the  defendant  has  not  sustained  his  plea 
of  justification,  still,  the  fact  that  he  has  filed  such  plea  should 
not  of  itself  be  regarded  bv  the  jury  as  an  afforravation  of  the 
original  offense,  if  they  believe,  from  the  evidence,  that  it  was 
filed  in  good  faith,  and  with  an  honest  belief,  on  the  part  of  the 
defendant,  that  he  would  be  able  to  sustain  the  plea  by  evidence. 

Exemplary  Damages  may  be  Given  in  Slander,  Wlien. — If  the  jury, 
under  the  evidence,  and  the  instructions  of  the  court,  find  the 
defendant  guilty  in  this  case,  in  assessing  the  plaintiff's  dam- 
ages, they  are  not  confined  to  such  damages  as  will  simply  com- 
pensate the  plaintiff  for  such  injuries  as  the  evidence  shows  she 


240  INSTRUCTIONS 

lias  received,  by  reason  of  the  speaking  and  iiul.lisliing  of  the 
defamatory  words,  charged  in  the  declaration,  bnt  they  may,  in 
addition  thereto,  assess  against  the  defendant,  by  way  of  pnnish- 
nient  to  him,  and  as  an  example  to  others,  snch  damages  as  the 
jury,  in  their  sound  judgment,  under  all  the  evidence  in  the 
case,  believe  the  defendant  ought  to  pay,  not  exceeding,  in  any 
event,  the  amount  of  damages  claimed  by  the  plaintiff  in  the 
declaration;  provided,  tiie  jury  believe,  from  the  evidence,  that 
the  defamatory  words  were  spoken  maliciously  or  wantonly  by 
the  defendant. 

If  the  jury  find  the  defendant  guilty,  they  should  then  deter- 
mine, from  all  the  facts  and  circumstances  proved,  what  dam- 
ages ought  to  be  given  to  the  plaintiff;  and  the  jury  are  not 
confined  to  the  mere  pecuniary  loss  or  injury,  but  they  may  give 
damages,  as  a  punishment  to  the  defendant,  as  well  as  to  com- 
pensate the  plaintiff  for  the  stain  inllicted  upon  her  character; 
]irovided,  the  jury  believe.from  the  evidence,  that  the  defendant, 
in  speaking  the  defamatory  words,  was  actuated  by  malice  in  fact. 

If  the  jury  believe,  from  the  evidence,  that  the  defendant  is 
guilty  "of  uttering  the  slanderous  words  charged  in  the  declara- 
tion, then  they  may  take  into  consideration  the  pecuniary  cir- 
cumstances of  the  defendant,  and  his  position  and  influence  in 
society,  so  far  as  those  matters  have  been  shown,  by  the  evi- 
dence, in  estimating  the  amount  of  damages  which  the  i)laintiff 
ought  to  recover.  Ilosley  vs.  Brooks,  20  111.,  115. 
[See  Part  I.,  Sec.  20.] 

Though  the  jury  may  believe,  from  the  evidence,  that  the 
defendant  was  guilty  of  speaking  the  slanderous  words  charged 
in  the  declaration,  still,  if  the  jury  find,  from  the  evidoice,  that 
the  words  were  spoken  without  actual  malice  on  the  part  of  the 
defendant,  though  under  circmnstances  showing  a  want  of  cau- 
ticni  and  a  proper  respect  for  the  rights  of  the  {ilaintiff,  an<l  that 
the  plaintiff  has  suffered  no  spiM-ial  daninge  from  the  speaking 
of  the  words,  then  the  jury  should  only  give  c-onipensatory  dam- 
ages, and  in  such  case  compensatory  damages  are  such  as  will 
pay  the  plaintiff  for  his  expenses  and  trouble  in  carrying  on  the 
suit,  and  disproving  the  slanderous  words.  Armstrony  vs.  Pier- 
son,  8  Clarke,  la.,  21). 


IN    CIVIL    ACTIONS.  241 

Common  Carriers-Loss  of  Baggage. — The  court  instructs  the  jury, 
that  if  they  find  for  the  plaintiff  in  this  case,  in  assessing  his 
damages,  they  may  include  the  value  of  all  such  articles  of 
necessity  and  convenience  as  are  usually  carried  by  passengers 
for  their  personal  use  and  comfort,  instruction  and  amusement, 
or  protection,  having  regard  to  the  object  and  length  of  the 
journey  in  question,  and  which  are  shown,  by  the  evidence,  to 
have  been  lost  by  the  defendant,  if  any  such  loss  has  been  shown. 

Goods  Lost. — The  jury  are  instructed,  that  the  measure  of  dam- 
ao-es,  in  case  of  a  failure  of  a  common  carrier  to  deliver  goods 
according  to  contract,  and  which  are  lost,  is  then-  market  or 
actual  value  at  the  time  when,  and  the  place  where,  they  should 
have  been  delivered;  and  such  value  is  purely  a  question  of  fact 
to  be  fixed  by  the  jury,  from  the  evidence  in  the  case.  C.  c&  JV. 
W.  R<j.  Co.  vs.  DicUnsoii,  74  III,  249. 

Damages,  How  Determined.  —  The  jury  are  instructed,  that  a 
party  suing  for  an  injury  received  can  only  recover  such  dam- 
afi-es  as  naturally  flow  from,  and  are  the  immediate  result  of, 
the  act  complained  of.  The  jury  should  be  governed  solely  by 
the  evidence  introduced  before  them,  and  they  have  no  right  to 
indulge  in  conjectures  and  speculations  not  supported  by  the 
evidence.  Indianapolis  B.  &  W.  Rd.  Co.  vs.  Birney,  71  111.,  391. 

If,  from  the  evidence  in  the  case,  and  under  the  instructions 
of  the  court,  the  jury  shall  find  the  issues  for  the  plaintiff,  and 
that  the  plaintiff  has  sustained  damages,  as  charged  in  the 
declaration,  then,  to  enable  the  jury  to  estimate  the  amount  of 
such  damages,  it  is  not  necessary  that  any  witness  should  have 
expressed  an  opinion  as  to  the  amount  of  such  damage,  but  the 
jury  may,  themselves,  make  such  estimate  from  the  facts  and 
circumstances  in  proof,  and  by  considering  them  in  connection 
with  their  own  knowledge,  observation  and  experience  in  the 
business  affairs  of  life.  Ottaioa  Gas  L.  Co.  vs.  Graham,  28 
111.,  73. 

Exemplary  Damages— In  Trespass. — If  the  jury  believe,  from  the 
evidence,  that  a  trespass  was  committed,  as  charged  in  the  decla- 
ration, by  the  defendant,  or  his  servants,  by  his  direction,  in  a 

wanton  wilful  and  insulting  manner,  and  that  the  plaintiff  has 

16 


242  iNSTurcTioNS 

suffered  any  actual  damage  therefrom,  then  the  jui-vare  author- 
ized to  find  exemi)lary  damages;  that  is,  such  damages  as  will 
comix'usate  tlie  phiintilf  for  the  wrong  done  to  hun,  and  to 
punisli  the  defendant,  and  to  furnish  an  example  to  deter  others 
from  the  like  practices.  Sedg.  on  Meas.  Dam.,  35;  Cutler  vs. 
Smith,  57  111.,  252. 

Tlie  jury  are  instructed,  that  in  action  of  trespass  to  pei-sons 
or  property,  when  the  evidence  shows  the  trespass  to  have  been 
malicious  and  wilful,  oppressive,  or  wantonly  reckless,  the  jury 
may  give  what  are  known  as  punitive  or  exemplary  damages. 
III.  cO  St.  L.  Ed.  Co.  vs.  Cohh,  68  111.,  53. 

The  court  instructs  the  jury,  that  to  justify  the  recovery  of 
exemplary  damages  for  a  trespass  to  property,  it  nmst  be  shown, 
by  the  evidence,  that  the  defendant  was  actuated  by  malice  or  a 
reckless  disregard  of  the  plaintiff's  rights,  and  when  two  are 
sued,  and  one  of  them  is  not  chargeable  witli  malice  or  reck- 
lessness, exemplary  damages  cannot  be  recovered  against  both. 
JBecIcer  vs.  Dupree,  75  111.,  167. 

Exemplary  Damages  Defined. — Exemplary  damages  mean  dam- 
ac^es  given  by  way  of  punishment  for  the  connnission  of  a  wa-ong 
wilfully  or  wantonly,  or  with  some  element  of  aggravation. 
They  are  not  the  measure  of  the  pi-ice  of  the  property,  or  actual 
danuige  sustained,  l)ut  they  are  given  as  smart  money  in  the  way 
of  pecuniary  punishment,  to  make  an  example  for  the  pul)lic 
good,  and  to  teach  other  persons  not  to  offend  in  like  manner. 
Bates  vs.  Davis,  76  111.,  222. 


MUNICIPAL  CORPORATIONS— Negligence. 

Liable  for  Unsafe  ("(nidition  <>f  Streets,  When. — Tlie  court  instructs 
the  jury,  that  the  defendant  corporation  is  l)ound  by  law  to  use 
all  reasonable  care,  caution  and  supervision  to  keep  its  streets, 
sidewalks  and  bridges  in  a  safe  condition  lor  tra\el,  in  tlie  or- 
dinary modes  of  traveling,  by  night  as  well  as  by  day,  and  if  it 
fails  to  do  so,  it  is  liable  for  injuries  sustained,  in  conseipience 
of  such  failure;  provided,  the  party  injured  is  himself  exercising 


IN    CIVIL    ACTIONS.  243 

reasonable  care  and  caution;  and  the  fact  that  the  plaintiff  may, 
in  some  way,  have  contributed  to  the  injury  sustained  by  him, 
will  not  prevent  his  recovery  if,  by  ordinary  care,  he  could  not 
have  avoided  the  consequences  to  himself  of  the  defendant's 
negligence.  Cooley  on  Torts,  625;  Mayoi\  etc.,\&.  Dodd,  58 
Ga.,  238;  Centerville  vs.  Woods,  57  Ind.,  192;  Rowell  vs.  Will- 
iams, 29  la.,  210;  St.  Paul  vs.  Kuby,  8  Minn.,  154. 

If  the  jury  believe,  from  the  evidence,  that  the  corporate 
authorities  of  the  city  of  S.  did  not  exercise  all  reasonable  care 
and  supervision  over  that  portion  of  the  sidewalk  where  the 
injury  in  question  is  alleged  to  have  occurred,  to  keep  it  in  good 
and  safe  condition,  and  by  that  means  allowed  it  to  become 
defective  and  unsafe;  and  if  the  jury  further  believe,  from  the 
evidence,  that  the  plaintiff,  in  attempting  to  walk  along  that 
portion  of  the  sidewalk,  by  reason  of  such  defect  was  injured, 
and  has  sustained  damage  thereby,  as  charged  in  the  declaration, 
and  that  he  was  at  the  time  exercising  reasonable  care  and  cau- 
tion to  avoid  such  injury,  then  the  defendant  is  liable,  and  the 
jury  should  find  for  the  plaintiff. 

Law  Imposes  the  Duty  to  Keep  Streets  in  Reasonably  Safe  Condition.— 

The  law  is,  that-  wliere  the  city  charter  gives  the  city  authorities 
power  to  provide  for  keeping  the  streets  in  repair,  and  to  pro- 
hibit obstructions  therein,  then  it  is  the  duty  of  the  city  author- 
ities to  keep  the  streets  and  sidewalks  in  a  safe  condition  for 
travel,  so  far  as  this  can  be  done  in  the  exercise  of  reasonable 
care  and  prudence  in  that  respect.  Cooley  on  Torts,  625 ;  The 
People  vs.  The  Mayor,  etc.,  63  111.,  207;  Prideaux  v^. Mineral 
Point,  43  Wis.,  513;  Mayor,  etc.,  vs.  Cooley,  55  Ga.,  17. 

The  jury  are  instructed,  as  a  matter  of  law,  that  any  person 
traveling  upon  a  sidewalk  of  a  city,  which  is  in  constant  use  by 
the  public,  has  a  right,  when  using  the  same  with  due  diligence 
and  care,  to  presume,  and  to  act  upon  the  presumption,  that  it 
is  reasonably  safe  for  ordinary  travel  throughout  its  entire  width, 
and  free  from  all  dangerous  holes,  obstructions  or  other  defects. 
Indianapolis  vs.  Gaston,  58  Ind.,  224. 

If  the  jury  believe,  from  the  evidence,  that  the  plaintiff,  while 
passing  along  one  of  the  sidewalks  in  said  city,  was  injured,  as 
alleged  in  his  declaration,  and  that  the  iniury  would  not  have 


244  I  N  S  T  R  I-  C  T  I  O  X  s 

happened  to  liiui  if  the  said  sidewalk  had  been  in  a  reasonably 
good  repair  and  safe  condition,  then  the  defendant  is  liable  for 
such  injury;  provided,  the  jury  believe,  from  the  evidence,  that 
the  plaintiff  was  exercising  reasonable  care  and  caution  to  avoid 
injury  while  passing  over  said  walk;  and  that  said  city  did  not 
use  reasonable  jcare  to  keep  said  sidewalk  in  safe  condition. 

Duty  to  Provide  Guards  and  Notice. — The  court  instructs  the  jury, 
that  wliile  a  city  has  the  right  to  construct  sewers,  or  otlier  im- 
provements, in  its  streets,  yet,  when  it  causes  such  work  to  be 
done,  it  is  bound  to  take  notice  of  the  character  of  the  work  and 
the  condition  in  which  the  streets  are  left,  whether  safe  or  dan- 
gerous. 

If,  in  making  improvements,  it  becomes  necessary  to  leave 
dangerous  holes  or  openings  in  the  street,  or  to  leave  piles  of 
dirt,  or  otlier  obstructions,  in  the  street,  in  such  a  way  as  to  ren- 
der it  dangerous  for  wagons  or  carriages  to  pass,  then  it  is  the 
duty  of  the  city  to  put  up  guards  or  notices  of  some  kind,  to 
Avarn  travelers  of  the  dangerous  condition  of  the  street;  and  if 
they  do  not  do  so,  and  persons  are  thereby  injured,  while  in  the 
exercise  of  reasonable  care  and  prudence  themselves,  the  city 
will  be  liable  for  the  injuries  thus  sustained. 

The  court  insti-ucts  the  jury,  that  all  incorporated  towns,  vil- 
lages, and  cities,  whether  inc^orporated  by  special  charter  or  under 
general  laws,  have  the  power,  and  it  is  their  duty,  to  keep  in 
repair  the  )-oads  and  bridges  within  tlicir  corporate  limits,  and  if 
injury  results  to  any  individual  by  reason  of  a  neglect  of  such 
duty,  while  he  himself  is  exercising  reasonable  care  and  pru- 
dence to  avoid  such  injury,  the  corporation  will  be  liable  in  dam- 
ages.     The  President,  etc.,  vs.  Meredith,  54  111.,  S-i. 

Street  Includes  Sidewalks.  —  The  jury  are  instructed,  that  the 
streets  of  a  city  extend  to  and  include  that  portion  thereof  occu- 
pied and  used  for  sidewalks.  In  tlie  grant  by  the  legislature  of 
control  over  the  streets  of  tlie  city,  to  the  city  authorities,  control 
over  the  sidewalks  passes  to  them  as  a  part  of  the  street,  and  this 
imposes  upon  the  city  authorities  the  duties  of  keeping  tlie 
sidewalks  in  repair,  as  a  part  of  the  street.  City  of  B.  vs.  Bay, 
42  111.,  503. 


IN    CIVIL    ACTIONS.  245 

Accident  and  Negligence. — Tlie  court  instructs  the  jury,  that  if 
tliey  believe,  from  the  evidence,  that  the  phiintiff  was  injured 
and  sustained  damage,  as  charged  in  the  declaration,  and  that 
such  injury  was  the  combined  result  of  an  accident,  and  of  a  de- 
fect in  the  walk,  and  that  the  damage  would  not  have  been  sus- 
tained but  for  the  defect,  although  the  primary  cause  of  the  in- 
jury was  a  pure  accident,  still,  if  the  jury  further  believe,  from 
the  evidence,  that  the  plaintiff  was  guilty  of  no  fault  or  negli- 
gence, and  the  accident  one  which  common  and  ordinary  pru- 
dence and  sagacity,  on  the  part  of  the  plaintiff,  could  not  have 
foreseen  and  provided  against,  then  the  city  is  liable;  provided, 
the  jury  believe,  from  the  evidence,  that  the  city  authorities  were 
guilty  of  negligence  in  not  remedying  such  defect. 

Reasonable  Care  and  Caution,  What. — The    jury    are    further    in-  ^ 

structed,  that  reasonable  care  and  caution  required  of  the  plaintiff,  ) 

as  mentioned  in  these  instructions,  means  that  degree  of  care  and  / 
caution  which  might  reasonably  l)e  expected  from  an  ordinarily 

prudent  person,  under  the  circumstances  surrounding  the  plaintiff  ^ 
at  the  time  of  the  alleged  injury. 

Care  Must  be  Proportionate  to  the  Known  Danger. — If  the  jury  be- 
lieve, from  the  evidence,  that  the  place  where  the  accident  in 
question  occurred,  was  necessarily  more  dangerous  than  the 
ordinary  streets  and  sidewalks,  and  that,  by  the  exercise  of  ordi- 
nary care  and  prudence,  this  condition  of  things  could  have  been 
known  to  the  plaintiff,  or  was  known  to  him,  then  the  plaintiff 
was  required  to  use  more  than  ordinary  care  and  caution  to 
avoid  the  accident,  and  if  he  failed  to  do  so,  and  thereby  con- 
tributed to  the  injur}',  he  cannot  recover  in  this  suit. 

Slight  Negligence  will  not  Defeat  Recovery. — That  a  traveler  on  a 
public  street  is  held  to  the  exercise  of  only  ordinary  care.  Slight 
negligence,  which  is  a  Avant  of  extraordinary  care,  will  not  defeat 
a  recovery  for  an  injury,  received  in  consequence  of  a  defect  in 
the  street;  provided,  the  evidence  shows  that  the  city  authorities 
were  guilty  of  negligence,  in  permitting  the  defect  to  exist  in 
the  street,  and  that  the  traveler  was  injured  thereby,  and  was 
using  ordinary  care  to  avoid  the  injury.  Gujjin  vs.  The  Toicii 
of  Willow,  43  Wis.,  503. 


246  INSTRUCTIONS 

Streets  and  Walks  to  be  Kept  Reasonably  Sale. — The  court  iiistnicts 
the  jurv,  as  a  matter  of  law,  that  a  city  is  not  required  to  have 
its  sidewalks  so  constructed  {or  lept  in  such  condition)  as  to 
secure  innnunity  in  usin-»;  tlieni;  nor  is  it  bound  to  employ  the 
utmost  care  and  exertion  to  tlmt  end.  Its  duty  under  the  law, 
is  only  to  see  that  its  sidewalks  are  reasonably  safe  for  persons 
exercising  ordinary  care  and  caution. 

And  in  this  case,  if  the  jury  believe,  from  the  evidence,  that 
the  sidewalk  was  so  constructed  as  to  be  sufficiently  level  and 
smooth  for  ordinary  travel,  and  so  built  that  it  would  not,  by 
reason  of  any  peculiarities  of  its  construction,  cause  snow  or  ice 
to  accumulate  thereon,  and  that  the  accident  was  attributable 
solely  to  the  slippery  condition  of  the  sidewalk,  occasioned  by  a 
recent  fall  of  snow,  and  tliat  the  sole  cause  of  the  accident  was 
the  temporary  slipperiness  of  that  i)art  of  the  sidewalk  caused 
by  the  recent  fall  of  snow  thereon,  such  a  condition  of  the  side- 
walk would  not  be  a  defect,  for  -which  the  city  would  be  liable. 
City  of  Chicago  vs.  McGiven,  78  111.,  347. 

Deg-ree  of  Care  Reciuired. — The  jury  are  instructed,  that  the  de- 
fendant is  not  bound  to  any  greater  degi-ee  of  care  and  diligence 
than  is  suffii-ient  to  keep  its  streets  and  sidewalks  in  a  reasonably 
safe  condition,  and  if  any  accident  occurs  when  they  are  in  such 
reasonably  safe  condition,  the  defendant  is  not  liable  for  such 
accident. 

Negligence  of  Driver. — The  law  is,  that  the  driver  of  a  private 
conveyance  is  the  agent  or  servant  of  the  pei'son  riding  in  such 
conveyance,  and  if  such  person,  while  riding  ahnig  a  public  high- 
way or  street,  is  injured,  in  consequence  of  obstruction  or  delects 
negligently  permittted  to  remain  in  the  street  or  highway,  and 
the  driver  is  guilty  of  a  want  of  ordinary  care  and  caution,  and 
his  nc-ligence  materially  contributes  to  such  injury,  then  the 
person  injured  cannot  recover,  as  against  the  city,  for  the  injury 
thus  received.      Prideaux  vs.  Mineral  Pointy  43  Wis.,  513. 

Not  Obliged  to  Open  Streets.— Tlic  court  instructs  the  jury,  that 
cities  are  under  no  legal  obligation  to  open  up  streets  loi"  the 
use  of  the   public.     The   legal  obligation  of   a  city  to   repair 


IN    CIVIL    ACTIONS.  24:7 

Streets,  sidewalks  and  bridges,  within  its  corporate  limits,  only 
relates  to  snch  as  are  opened  or  constructed  under  its  authority, 
or  those  which  its  officers  have  assumed  control  over.  Crai<j 
vs.  Sedalia,  63  Mo.,  417;  Sher.  &  Red.  on  Neg.,  §  127;  Wilso7i 
vs.  The  Mayor,  etc.,  1  Denis,  595;  Joliet  vs.  Verley,  35  111.,  58. 
There  is  no  legal  obligation  resting  npon  a  city  to  build  side- 
walks, construct  gutters,  or  pave  streets,  but  when  the  city  does 
make  these  improvements  for  the  benefit  of  the  public,  it  then 
becomes  its  duty  to  nse  all  reasonable  care  and  exertions  to  keep 
them  in  repair.      City  of  Alton  vs.  Ilojje,  68  111.,  167. 

Do  not  Insure  the  Safety. — The  jury  are  instructed,  that  a  munic- 
ipal corporation  is  not  liable  for  every  accident  that  may  occur 
from  defects  in  its  sidewalks  or  streets.  Its  officers  are  not 
required  to  do  everything  that  human  energy  and  ingenuity  can 
possibly  do  to  prevent  the  happening  of  accidents  or  injury  to 
the  citizen.  If  they  have  exercised  a  reasonable  care  in  that 
regard,  they  have  discharged  their  duty  to  the  public.  City  of 
Centralia  vs.  Krouse,  64  111.,  19. 

Liable  for  Negligence  of  Others,  When. — Although  the  jury  may 
believe,  from  the  evidence,  that  the  sidewalk  in  question  was 
constructed  by  a  private  person,  and  not  under  the  direction 
or  supervision  of  the  city,  still  this  would  not  exempt  the  city 
from  liability  for  defects  in  the  walk;  provided,  the  jury  be- 
lieve, from  the  evidence,  that  the  w^alk  was  so  constructed  as  to 
be  dangerous  for  ordinary  travel,  and  that  this  defect  was  known 
to  the  officers  of  the  city,  or  that  by  the  exercise  of  ordinary 
care  they  might  have  known  of  such  defect  in  time  to  have 
remedied  it  before  the  accident.  Barnes  vs.  The  Town  of 
Newton,  46  la.,  567;  Cooley  on  Torts,  626;  Wendell  vs.  Troy, 
39  Barb.,  329;  Sher.  &  Red.  on  Xeg.,  §  147. 

It  is  the  duty  of  the  city  to  use  all  reasonable  care  and  vigi- 
lance in  the  selection  of  agents,  servants  and  contractors,  in 
making  improvements,  and  to  retain  control  and  superintend- 
ence over  them  in  the  performance  of  their  duties,  and  to 
enforce  such  measures  of  care  and  vigilance  as  will  guard  the 
public  against  exposure  to  injury,  so  far  as  this  can  reasonably 
be  done. 


24:8  I  N  S  T  U  U  C  T  I  O  N  S 

I 

Tlie  court  instructs  the  jun',  as  a  matter  of  law.  that  where 
work  is  done  upon  the  streets  ot"  a  city,  there  is  a  reasonal)U? 
presumption  that  it  is  done  hy  the  proper  authorities  of  the  city, 
aiid  in  a  suit  to  recover  damages  for  an  injury  occasioned  h\'  th(^ 
negligent  manner  t)f  doing  such  work,  it  is  not  necessary,  in  tlie 
first  iustance,  to  prove  that  it  was  done  hy  persons  employed  hv 
the  citv,  as  this  will  be  presumed,  unless  the  contrary  apj^ears 
from  the  evidence. 

And,  in  this  case,  if  the  jury  believe,  from  the  evidence,  that 
the  injui-y  complained  of  was  caused  by  a  dangerous  {2)tle  of 
diii,  or  openiuj/),  left  iu  the  street  in  question  by  pei*sons  em- 
j)loyed  by  the  city,  to  place  a  sewer  or  water  pipe  in  such  street, 
then  the  jury  are  instructed,  that  it  is  not  necessary  for  the 
plaintiff,  in  order  to  recover  in  this  suit,  to  j^rove  that  the  city 
authorities  had  actual  notice  that  such  *  "■  ""  was  left  in 
said  street;  provided,  the  jury  further  believe,  from  tlie  evidence, 
that  such  work  was  done  under  the  supervision  of  the  {street 
comm.issioiier,  etc).       Olt;/  of  Chicago  vs.  Bvophy^  79  111.,  277. 

If  tlu!  jury  believe,  from  the  evidence,  that  the  defendant  let 
out  the  job  of  filling  up  and  grading  {Main  street)  to  other  per- 
sons, at  so  much  per  yard,  the  grading  to  be  done  under  the 
supervision  of  defendant's  engineer,  and  that  such  engineer 
went  upon  the  ground  with  such  other  persons,  and  pointe(l  out 
to  them  where  to  take  the  soil  from  and  where  to  put  it,  and 
su(;h  other  persons  did  the  work  as  directed  by  the  engineer, 
then  the  law  is,  that  the  relation  of  master  and  servant  existed 
between  the  city,  the  engineer  and  such  other  persons  doing  the 
work,  and  the  city  is  liable  in  all  respects,  the  same  as  if  it  had 
done  the  woi-k  by  men  employed  by  it  in  any  other  way.  Nevins 
vs.  City  of  Peoria,  41  111.,  502. 

Not  Liable  for  the  Xe^Hfjoiice  of  Otliers,  When. — The  jury  are 
instructed,  that  when  a  party,  wnthout  the  consent  of  the  author- 
ities of  an  incor[)orated  town,  digs  oi-  leaves  open  a  dangerous 
hole  or  pit  in  the  street,  and  a  person  is  thereby  injured,  the 
town  will  not  l)e  liable  for  such  injury,  unless  the  authorities 
have  actual  notice  of  tlie  nuisance  or  it  has  remained  a  sufficient 
time,  so  that  iu  the  exercise  of  ordinary  care  and  diligence  they 


IN    CIVIL    ACTIONS.  2-1-9 

ought  to  have  had  notice  of  the  dans^erons  condition  of  the 
street.     Fahey  vs.  The  President,  etc.,  62  Ilh,  28. 

The  jury  are  instructed,  that  when  the  duty  is  imposed  by  Law 
upon  a  city  corporation  to  keep  its  streets  in  safe  condition,  foi- 
use  l)y  the  public,  the  duty  cannot  be  shifted  off  upon  a  person 
emph)yed  by  the  city  to  perform  it;  and  if  an  injury  results 
from  the  negligence  of  such  person  in  the  performance  of  such 
duty,  the  corporation  will  be  liable  for  the  damage.  The  City 
of  Springfield  vs.  Le  Claire,  49  111.,  476. 

The  jury  are  instructed,  that  when  a  dangerous  place  is  made 
in  the  street  by  the  unlawful  act  of  third  parties,  unknown  or 
without  the  knowledge  or  consent  of  the  city  authorities,  the 
city  cannot  be  deemed  negligent  until  knowledge  or  notice  of 
such  defect  is  brought  home  to  the  officers  of  the  city,  unless 
the  dangerous  place  has  existed  for  such  a  length  of  time  before 
the  injury,  that  the  city  authorities,  in  the  exercise  of  reasonable 
care  and  diligence,  might,  and  ought  to  have,  known  of  its 
existence. 

The  court  instructs  the  jury,  that  when  an  act  is  done  which 

is  unlawful  in  itself,  such  as  placing  an  obstruction  in  a  public 

street,  which  detracts  from  the  safety  of  travelers,  the  author 

will  be  lield  liable  for  an  injury  resulting  from  the  act,  although 

other  causes  subsequently  arising  may  contribute  to  the  injury. 

Weick  vs.  Lander,  75  111.,  93. 

[See  Contractor's  Negligence.] 

BefectiTe  Sidewalk— Notice  Presumed,  When — The  court  instructs  the 
iurv,  tliat  when  the  sidewalk  of  a  city  is  out  of  repair,  and  re- 
mains so  for  such  a  length  of  time  tliat  the  public  authorities  of 
the  city,  in  the  exercise  of  reasonable  care  and  prudence,  ought 
to  have  discovered  the  fact,  then  actual  notice  to  such  authori- 
ties of  the  condition  of  the  walk  will  not  be  necessary  to  hold  the 
city  liable  for  injury  sustained  by  a  person,  in  consequence  of 
the  dangerous  condition  of  the  street,  if  he  is  himself  using  rea- 
sonable care  to  avoid  such  injury.  Sher.  and  Red.,  §  148; 
Mayor  vs.  Shejield,4:^sd\.,  189;  City  of  Springfield  \^.  Doyle, 
76  ill,  202;  Schweickhardt  vs.  St.  Louis,  2  Mo.  App.,  571. 

The  jury  are  instructed,  that  the  defendant  is  bound  to  use  rea- 
sonable care  and  precaution,  to  keep  and  maintain  its  streets  and 


250  INSTRUCTIONS 

sidewalks  in  good  and  sufficient  repair,  to  render  tlicm  reason- 
ably safe,  for  all  persons  passing  on  or  over  the  same;  and  if  the 
jury  believe,  from  the  evidence,  that  the  defendant  failed  to  use 
all  reasonable  care  and  precaution,  to  keep  its  sidewalk  in  such 
repair,  and  tliat  the  injurv  (•(tiiiplained  of  resulted  fi-om  that 
cause,  as  charged  in  the  de('laration,  and  that  the  plaintiff  sus- 
tained damage  thereby,  without  negligence  or  want  of  care  oil 
plaintiff's  part,  theii  he  is  entitled  to  recover  in  this  suit. 

Must  Have  Notice,  Actual  or  Constructive. — If  tlie  jury  believe, from 
the  evidence,  that  the  sidewalk,  in  which  the  defect  is  alleged  t(^ 
have  been,  and  where  the  plaintiff  is  alleged  to  have  been  in- 
jured, was  properly  and  safely  constructed,  and  laid  down,  and 
that  prior,  and  up  to,  or  about  the  time  of  the  alleged  injury, 
it  appeared  to  be  in  a  proper  and  safe  condition,  then,  if  there 
be  no  evidence  that  the  defendant  had  actual  knowledge  of  such 
defect,  or  that  the  defect  existed  for  such  length  of  time  before 
the  injury,  that  the  defendant,  if  exercising  proper  care  and 
diligence,  would  have  known  of  it,  the  jury  should  find  the  de- 
fendant not  guilty.  SchweicJchardt  vs.  St.  Louis,  2  Mo. 
App.,  571. 

Notwithstanding  the  jury  may  believe,  from  the  evidence, 
that  the  sidewalk,  at  the  time  of  the  aHeged  injury,  was  defect- 
ive, yet  this  fact  alone  would  not  be  sufficient  evidence  of  neg- 
ligence on  the  part  of  the  defendant.  In  order  to  charge  the 
defendant  with  negligence,  it  must  appear,  from  the  evidence, 
not  only  that  the  sidewalk  was  defective  at  the  time  of  the  alleged 
injury,  but  it  must  further  appear  that  such  defect  was  actually 
known  to  the  city  through  some  of  its  officers,  agents,  or  servants, 
or  that  the  defect  had  existed  for  such  a  length  of  time  })rior  to 
the  alleged  injury,  that  the  city,  if  exercising  ordinary  diligence, 
would  or  should  have  known  of  the  defect.  The  City  of  Chi- 
cAKjo  vs.  3r<-Carth;/,  75  111.,  (!02. 

A  city  is  l)ound  only  to  the  exercise  of  reasonable  j^rudence 
and  diligence  in  the  construction  of  its  sidewalks,  and  is  not  re- 
(piired  to  foresee  and  provide  against  every  jwssible  danger  or 
accident  that  inav  occur. 


IN    CIVIL    ACTIONS.  251 

It  is  only  required  to  keep  its  streets  and  sidewalks  in  a  rea- 
sonably safe  condition,  and  it  is  not  an  insurer  against  accidents. 
Citij  of  Chicago  vs.  Bixhy,  84  111.,  82. 

Injury  to  Adjoining  Property  —  Clianging-  Grade. — The  jury  are 
instructed,  that  a  nninicipal  corporation,  while  acting  within 
the  scope  of  its  authority,  in  making  excav^ations  in  a  street,  for 
the  purpose  of  opening  it  or  improving  it,  if  using  reasonable  care 
and  skill,  is  not  liable  to  a  lot  owner  for  an  injury  resulting 
therefrom  to  his  lot  or  the  buildings  thereon.  Slier,  cfe  Red.  on 
Neg.,  §  129;  City  of  Quinoy  vs.  Jones,  76  111.,  231;  Pontiao 
vs.  Carter,  32  Mich.,  161;   Wegmann  vs.  Jefferson,  61  Mo.,  55. 

The  jury  are  instructed,  that  while  the  corporate  authorities 
of  cities  are  vested  with  power  to  grade  their  streets,  yet  the 
mode  in  which  the  power  is  to  be  exercised,  in  reference  to  the 
rights  of  others  in  the  enjoyment  of  their  property,  is  limited 
in  the  same  way  and  to  the  same  extent  as  the  power  of  a 
private  person  in  the  use  of  his  property.  Sher.  &  Red.  on 
Neg.,  §  114;  City  of  Pehin  vs.  Brenton,  76  111.,  477;  ^¥ei<JU' 
man  vs.  Washington,  1  Black.,  39 ;  Madison  vs.  Ross,  3  Ind., 
236;  Milwaukee  vs.  Davis,  6  Wis.,  377;  Puke  vs.  Rome,  20 
Ga.,  635. 

The  jury  are  instructed,  as  a  matter  of  law,  that  if  a  city,  in 
exercising  its  powder  of  changing  the  grade  of  its  streets,  fails 
to  exercise  reasonable  prudence  and  skill,  it  wnll  be  liable  for  all 
damages  that  result  from  such  failure.  City  of  B.  vs.  Brokaw, 
Ti  III,  194. 

The  jury  are  instructed,  that  if  the  authorities  of  a  city,  in 
altering  or  changing  the  grade  of  the  streets,  do  not  do  the 
work  in  good  faith  and  wnth  reasonable  care  and  skill,  to  avoid 
damaging  the  adjoining  property  owners,  the  city  will  be  liable 
to  such  owners  for  all  damage  directly  resulting  therefrom. 
Roberts  vs.  The  City  of  Chicago,  26  111.,  249. 

Liable  for  Want  of  Reasonable  Care  Only The  jury  are  instructed, 

that  a  city  has  full  control  over  the  grades  of  its  streets,  and  may 
low^er  or  elevate  them  at  will,  and  the  owner  of  lots  adjacent  to 
the  street  cannot  call  it  to  account  for  error  in  judgment,  in  fix- 
ing the  grade,  nor  recover  damages  for  inconvenience  or  expense 


252  IXf^TKUCTION'S 

incurred  in  adjusting  their  premises  to  the  grade  of  the  street; 
provided,  the  city  authorities  exercise  reasonable  care  and  skill 
in  the  performance  of  this  work. 

Tiiat  the  authorities  of  a  city  have  a  right  to  alter  the  grades 
of  the  streets  at  their  discretion,  and  if  tliis  is  done  with  reason- 
able care  and  skill,  no  liability  :u-ises  from  their  acts.  Xeithc  - 
courts  nor  juries  can  incjuire  whether  the  grade  adopted  is  the 
best  one  or  not,  and  in  this  case,  the  only  cpiestion  for  the  jury 
is  whether,  in  doing  the  work  in  (piestion,  the  city  officers  acted 
in  good  faith,  and  with  i-easonable  care  and  skill,  to  avoid  dam- 
age to  the  plaintiff's  property.  Lee  vs.  The  City  of  Minn.,  22 
Minn.,  13;  Detroit  vs.  Beckman^Z^  Mich.,  125;  Cheever  vs. 
Ladd,  13  Blatchf.,  258;  r^^^-^vs.  J/o.  etc.,  Rd.  6'o.,  6-1  Mo.,  140. 

A  city  has  no  more  power  over  its  streets  than  a  private  indi- 
vidual has  over  his  own  land,  and  it  cannot,  nnder  the  plea  of 
public  convenience,  be  permitted  to  exercise  that  dominion  to 
the  injury  of  the  property  of  any  one  else,  in  a  mode  that  would 
i-ender  a  private  individual  responsible  in  damages,  without  be- 
ing resi^onsible  itself. 

If  the  jury  believe,  from  the  evidence,  that  the  city,  in  im- 
proving {Main,  street)  in  said  cit}',  tixed  the  grade  and  caused 
to  be  constructed  sewers  and  drains  in  said  street,  to  carry  off 
the  surplus  water  which  necessarily,  in  case  of  rains,  would  run 
down  said  street,  by  reason  of  said  trading,  and  that,  on  or 
aboiU,  etc.,  there  came  a  rain,  and  said  sewers  or  drains  were 
stopped  up,  or  were  otherwise  defective,  so  that  they  would  not 
carry  off  the  surplus  water,  and  thereby  the  water  from  said  rain 
was  forced  into  the  basement  of  the  plaintiff's  building,  and  the 
plaintiff  therel^y  damaged,  then  the  jury  should  find  for  the 
plaintiff's  to  the  amount  which  the  proof  shows  such  damage 
to  be. 

The  jury  are  instructed,  that  the  city  of has  control  of 

all  streets  and  sidewalks  in  said  city;  and  il  the  jury  believe, 
from  the  evidence,  that  the  sidewalk  or  street,  in  front  of  plaintiff's 
premises,  pitched  toward  his  lot,  and  was  permitted  so  to  be  con- 
structed 1)y  said  city,  or  was  permitted  by  said  city  so  to  remain 
after  being  so  built  by  others,  after  a  reasonable  time  in  whicli 
to  have  changed  it,  then   the  citv  cannot  shield    itself   JVoni  lia- 


IN    CIVIL    ACTIONS.  253 

bility  for  flooding  plaintiff's  premises,  if  the  evidence  shows  they 
were  so  flooded,  on  account  of  the  pitch  of  said  street  or  side- 
walk,     Cltij  of  Aurora  vs.  Gillett,  56  111.,  132. 

Changing  Water  Courses. — The  court  instructs  the  jury,  that  if  a 
city,  in  exercising  its  power  of  changing  the  grade  cif  its  streets, 
fails  to  exercise  reasonable  prudence  and  skill,  it  will  be  liable 
for  all  damages  that  result  from  such  failure. 

And  if  a  city,  in  fixing  the  grade  of  a  street,  or  in  afterwards 
changing  it,  flows  water  upon  a  lot  that  it  did  not  naturally  carry 
off,  the  city  will  be  liable  for  damages,  if  any  are  caused  thereby. 
Ashley  vs.  Fort  Iluron^  35  Mich.,  29();  City  of  B.  vs.  Brokaw^ 
77  111.,  194;  Kohs  vs.  Minnea.,  22  Minn.,  159. 

The  court  further  instructs  the  jury,  that  a  city  has  no  more 
power  over  its  streets  than  a  private  person  has  over  his  own 
land.  A  city  has  no  right  to  turn  surface  water  on  to  private 
property,  and  if  a  city,  in  fixing  the  grade  of  a  street,  turns  a 
stream  of  water  and  mud  on  to  the  ground  or  into  the  cellar  of 
a  citizen,  or  creates  in  his  neighborhood  a  stagnant  j^ool,  likely 
to  generate  disease,  the  city  will  be  liable  in  damages  the  same 
as  an  individual  would  for  doing  the  same  thing.  City  of 
Aurora  \s.  lieed,  57  111.,  29;  JIayor,  etG.,ys.  Thompson,  2d 
Ark.,  569. 

Measure  of  Damag-es. — If  the  jury  believe,  from  the  evidence, 
that  the  plaintiff  was  injured  by  reason  of  the  defendant  negli- 
gently failing  to  keej)  its  sidewalk  in  reasonably  good  repair,  or 
negligently  allowing  the  same  to  remain  in  an  unsafe  condition, 
as  explained  in  these  instructions,  and  without  fault  on  his  part, 
and  that  he  has  sustained  damage,  then  the  jury  have  a  right  to 
find  for  him  such  an  amount  of  damages  as  the  jury  believe, 
fi-om  the  evidence,  will  comj^ensate  him  for  the  personal  injury 
so  received,  and  for  his  loss  of  time  in  endeavoring  to  be  cured, 
and  his  expenses,  necessarily  incurred  in  respect  thereto,  if  any 
such  loss  or  expenses  have  been  proved;  and  also  for  tlie  paiii 
and  suffering  nndergone  by  him,  and  any  permanent  injury,  if 
any  such  has  been  proved. 

[See  Measure  of  Damages.] 


254:  INSTRUCTIONS 


NEGLIGENCE.    GEN  ERALLY. 

Burden  of  Proof. — Tlie  burden  of  proving  negligence  rests  on 
the  party  alleging  it;  and  where  a  person  cliarges  negligence  on 
the  part  of  another  as  a  cause  of  action,  he  must  jM-ove  the  neg- 
ligence, by  a  pi-cponderance  of  evidence.  And  in  this  case,  if 
the  jury  find  that  the  weight  of  the  evidence  is  in  favor  of  the 
defendant,  or  tliat  it  is  equally  balanced,  then  the  plaintiff  can- 
not recover,  and  the  jury  shoidd  find  the  issues  for  the  defend- 
ant. Cooley  on  Torts,  673;  IfcQailken  vs.  Cent.,  etc.,  Co.,  50 
Cal.,  7;  Q.  A.  d;  St.  L.  R.  R.  Co.  vs.  Wellhoener,  72  111.,  GO; 
Iloyt  vs.  Hudson,  27  Wis.,  65G;  St.  Paul  vs.  Kuhy,  8  Minn., 
\h^',  Jeffersonmlle,  etc.,  vs.  Lyon,  55  Ind.,  477;  JSEurphy  vs. 
CJiicago,  etc.,  Rd.  Co.,  45  la.,  GOl. 

The  court  instructs  the  jury,  that  if  they  Ixdieve,  from  the 
evidence,  tliat  the  defendant  was  guilty  of  negligence,  as  charged 
in  the  declaration,  and  that  the  plaintiff  w^as  injured  thereby, 
then,  as  regards  the  defendant's  liability,  it  makes  no  difference 
whether  such  negligence  appears  or  is  proved  by  the  testimony 
on  the  part  of  the  plaintiff,  or  by  the  defendant's  own  witnesses. 
Keohuh,  etc.,  Co.,  vs.  True,  88  111.,  G08. 

The  jury  are  instructed,  that  in  determining  the  question  of 
negligence  in  this  case,  they  should  take  into  consideration  the 
situation  and  conduct  of  both  parties  at  the  time  of  the  alleged 
injury,  as  disclosed  by  the  evidence;  and  if  the  jury  believe, 
fi-om  the  evidence,  that  the  injury  complained  of  w^as  caused  by 
the  nen-li-rence  of  the  defendant's  servants,  as  charged  in  the 
declaration,  ami  without  any  greater  want  of  care  and  skill  on 
the  part  of  plaintiff  than  was  reasonably  to  be  expected .  from  a 
person  of  ordinary  care,  prudence  and  skill  in  the  situation  in 
which  he  found  himself  placed,  tlieii  the  plaintiff  is  entitled  to 
recover.     Wharton  on  Neg.,  §  304. 

Ordinary  and  Reasonable  Care  Re(|nlred  of  Defendant. — The  jury  arc 
instructed,  that  it  is  the  duty  of  a  street  railroad  company  to 
exercise  all  reasonable  cai-c  and  prudence  to  carry  their  passen- 
gers with  safety;    and  if  an    injury  to   a  passenger  results  from 


IN    CIVIL    ACTIONS.  255 

the  carelessness  of  its  servants  in  the  management  of  its  cars, 
from  a  defective  track,  or  from  an  overloaded  car,  or  from  all 
combined,  the  company  will  be  liable;  provided,  the  passengers 
own  negligence  does  not  contribute  to  the  injury.  Chicago, 
etc.,  Ry.  Co.  vs.  Yoicnrj^  62  111.,  238. 

Plaintiff  Must  Exercise  Reasonable  Care  and  Prudence. — The  jury 
are  instructed,  that  the  plaintiff  was  bound  to  exercise  ordinary 
care  and  prudence  in  attempting  to  cross  the  street,  and  though 
the  jury  may  believe,  from  the  evidence,  that  the  crossing  in 
question  was  dangeroiis,  still,  if  tliey  further  believe,  from  the 
evidence,  that  the  accident  in  question  is  attriljutable  to  the 
want  of  ordinary  care  on  the  j)art  of  the  plaintiff,  then  she  can- 
not recover  in  this  suit,  unless  the  jury  further  believe,  from  the 
evidence,  that  the  defendant  was  guilty  of  such  gross  negligence 
as  implies  wilful  or  wanton  injury.  Cooley  on  Torts,  674; 
Indiandpolis,  etc.,  li.  li.  Co.  vs.  McClure,  26  Ind.,  370; 
Litchfield,  etc.,  Co.  vs.  Taylor,  81  111.,  590;  Brown  vs.  Han- 
nihal,  etc.,  Rd.  Co.,  50  Mo.,  461 ;  Cooper  vs.  Cent.  R.  R.  Co., 
44  la.,  134. 

The  court  instructs  the  jury,  that  while  a  person  walking  on 
a  jTublic  highway  is  bound  to  use  all  reasonable  care  and  caution 
to  avoid  injury,  yet,  he  is  not  held  to  the  highest  j)ossible  degree 
of  j)i*ecaution  and  prudence;  and  to  authorize  a  recovery  for 
injuries  negligently  inflicted,  it  is  only  necessary  that  it  appear, 
from  the  evidence,  that  he  was  using  reasonable  care  and  caution. 

The  court  instructs  the  jury,  that  when  a  person  is  injured  by 
the  negligence  of  another,  he  must,  after  the  injury  is  received, 
act  as  an  ordinarily,  reasonable  and  prudent  man  would  under 
the  circumstances,  and  use  reasonable  diligence  to  know  whether 
medical  aid  is  required,  and  to  use  all  reasonable  efforts  to  have 
himself  cured ;  and  if  he  does  not  do  so,  he  cannot  recover  of 
the  defendant  for  any  suffering,  injury  or  damage  which  results 
from  his  failure  to  exercise  such  care  and  diligence.  Toledo, 
W.  c&  W.  Rd.  Co.  vs.  Eddy,  72  111.,  138. 

Master  Liable  for  Negligence  of  Servant. — The  master  is  civilly 
liable  for  the  tortuous  acts  of  his  servants,  whether  of  omission 
or  commission,  or  whether  negligent,  fraudulent  or  deceitful. 


25G  INSTRUCTIONS 

if  (lone  in  the  course  of  lils  employment,  even  thou:j;h  the  mas- 
ter (lid  not  authorize  or  know  of  such  acts,  or  may  have  for- 
l)iJ(,len  them.  JJut  the  act  must  he  (^lone,  not  only  while  the 
servant  is  enofaofed  in  the  service  he  is  emploved  to  rendei-,  hut 
it  must  pertain  to  the  i)ai-ticul:ir  duties  of  that  employment. 
S/i//(le?'  vs.  IIa7inihal  lid.  Co.,  GO  Mo.,  413;  liohinson  vs.  Wthb, 
11  Bush.,  Ky.,  464. 

The  court  instructs  the  jury,  that  where  a  tort  or  wrong  is 
committed  hy  an  agent  or  employe,  in  the  course  of  his  employ- 
ment, and  while  pursuing  the  husiness  of  liis  employer,  the  em- 
ployer will  be  liable  for  the  damages  resulting  from  the  wrong- 
ful act,  although  it  is  done  without  the  employer's  knowledge 
or  consent,  unless  the  wrongful  act  is  a  wilful  departure  from 
such  employment  or  business.  1  Add.  on  Torts,  81;  Cooley  on 
Torts,  533;  Goddard  vs.  Gra7id  Trunk  R.  R.  Co.,  57  ke., 
202;  PUla.,  etc.,  R.  R.  Co.  vs.  Derly,  14  How.,  U.  S.,  468; 
Bryant  y%.  Rich,  106  Mass.,  180;  Ind.  R.  R.  Co.  vs.  ArtthoJiy, 
43  Ind.,  183. 

The  court  instructs  the  jury,  that  when  the  em])loyer  gives 
his  servant  general  dii-ections  as  to  the  business  -which  is  en- 
trusted to  him  to  perform,  then  the  employer  is  held  to  have 
confided  in  the  discretion  of  his  seiA-ant,  and  is  answerable  feu- 
all  the  acts  of  the  servant  in  the  performance  of  the  duty  re- 
quired. 

If  the  jury  believe,  from  the  evidence,  that  before  and  at  the 
time  of  the  injury  complained  of,  the  said  S.  AV.  was  in  the  em- 
ploy of  the  defendants,  and  that  in  the  course  of  such  employ- 
ment, and  wliile  pursuing  the  business  of  liis  employers,  and. 
while  the  plaintiff  was  walking  in  one  of  the  pul)lic  streets  in 
the  city  of  C,  the  said  S.  W.,  carelessly  and  negligently  per- 
mitted a  horse  that  he  was  riding  to  run  against  the  plaintiff, 
and  thereby  injui'c  the  plaintiff,  as  charged  in  the  declaration, 
then  the  jury  should  find  the  issues  for  the  plaintiff;  pn^vided, 
the  jury  further  find,  that  the  ]daintiff  was  at  the  time  exercis- 
in<;  all  reasonable  care  and  cautinn  to  avoid  such  injury. 

Senant  Msist  be  Acting  Within  Scope  of  Employment. — Although 
the  jury  may  believe,  ironx  the  evidence,  that  at  the  time  in 
question  the  said  A.  B.  was  in  the  general  employment  of  the 


IN    CIVIL    ACTIONS.  257 

defendant  as,  etc.,  and  that  he  committed  the  wrongful  act  com- 
plained of  in  the  declaration,  still,  if  the  jury  further  believe, 
from  the  evidence,  that  when  the  said  A.  B.  (/'an,  over  the  plain- 
tiff) he  was  not  acting  within  the  scope  of  his  employment,  or 
in  furtherance  of  the  defendant's  business,  but  was  carrying  into 
effect  some  purpose  of  his  own  not  connected  with  his  employ- 
ment, then  the  defendant  would  not  be  liable  for  such  act. 

If  the  jury  believe,  from  the  evidence,  that  the  injuries  com- 
plained of  were  caused  by  the  negligence  or  carelessness  of  the 
servants  of  the  defendant,  in  the  course  of  their  employment  as 
such  servants,  as  charged  in  the  declaration,  and.  without  any 
fault  on  the  part  of  the  plaintiff,  which  contributed  to  the  injury 
complained  of,  then  the  defendant  is  liable  in  this  action. 

If  the  jnry  believe,  from  the  evidence,  that  the  injuries  com- 
plained of  were  caused  by  the  want  of  reasonable  care  and 
Avatchfulness  of  the  servants  of  the  defendant,  in  the  course  of 
their  employment  as  such  servants,  as  charged  in  the  declara- 
tion, and  that  the  plaintiff  made  use  of  all  the  care,  exertion  and 
skill  to  avoid  the  injury,  which  could  reasonably  be  expected 
from  a  man  of  ordinary  prudence,  energy  and  skill,  under  the 
circumstances  shown  by  the  evidence,  then  the  defendant  is 
liable  in  this  action. 

The  rule  of  law  is,  that  a  master  is  responsible  for  the  wrong- 
ful act  of  his  servant,  even  if  it  be  wilful,  reckless  or  malicious ; 
provided,  the  act  is  done  by  the  servant  within  the  scope  of  his 
employment,  and  in  furtherance  of  his  master's  business,  or  for 
the  master's  benefit.     1  Add.  on  Torts,  31. 

Wrongful  Act  of  Servant. — If  the  jm-y  believe,  from  the  evidence, 
that  defendant's  engineer,  with  intent  to  frighten  plaintiff's 
horses,  unnecessarily  and  wantonly  let  off  steam  or  blew  a 
whistle,  and  thereby  frightened  plaintiff's  horses,  so  that  they 
ran  off  and  injured  him  while  he  was  in  the  exercise  of  all  rea- 
sonable care  and  prudence  in  that  behalf,  then  the  defendant  is 
guilty,  and  the  jury  should  find  for  the  plaintiff.  Toledo^  etc.^ 
Rd.  Co.  vs.  Harmon^  47  111.,  29S. 

The  Negligence  Charged  Must  be  the  Proximate  Cause. — The  court 

instructs  the  jury,  that  the  rule  of  law  is,  that  every  person  must 

be  held  liable  for  all  of  those  consequences  which  flow  naturally 

17 


258  INSTRUCTIONS 

and  directly  from  liis  act,  or  which  niii;'ht  have  l)eon  foreseen 
and  reasonably  expected  as  tlie  result  of  his  conduct;  but  not 
for  those  consequences  which  do  not  flow  naturally  and  directly 
from  his  acts,  or  which  he  could  not  have  foreseen  or  reasonably 
have  anticijnited  as  the  result  of  his  conduct.  Cooley  on  Torts, 
(58;  AVhaiton  on  Xeg.,  §  74-78;  2  Parsons  on  Cont.,  456;  Illghy 
vs.  ILvHtt,  5  Exch.,  240;  1  Add.  on  Torts,  G;  Fent  vs.  T.  P.  tfc 
W.  Ud.  Co.,  59  111.,  349. 

If  the  jui-y  believe,  from  the  evidence,  that  the  defendant  was 
guilty  of  the  negligence  or  carelessness  charged  in  the  declara- 
/  tion,  and  that  the  injury  complained  o^  was  the  natural  con- 

sequence of  such  negligence  or  carelessness,  and  such  as  might 
have  been  foreseen  and  reasonably  anticij)ated  as  the  result  of 
such  negligence  or  carelessness,  then  such  carelessness  or  negli- 
gence should  be  regarded  as  the  approximate  cause  of  the 
injury. 

1'he  juiy  are  instructed,  that  although  they  may  believe,  from 
the  evidence,  that  the  injury  complained  of  was  occasioned  l)y 
the  acts  of  the  defendant,  still,  if  the  jury  further  believe,  from 
the  evidence,  that  such  injury  was  not  the  natural  result  of  the 
acts  of  the  defendant,  and  could  not  have  been  foreseen  or  rea- 
sonably expected  to  result  from  the  conduct  of  the  defendant, 
then  the  defen<hint  would  not  be  liable. 

The  jury  are  instructed,  that  an  act  is  not  to  be  deemed  the 

proximate  cause  of  an  injury,  unless  the  injury  was  such  a  con- 

l  sequence  of  the  act  as,  under  the  surrounding  circumstances  of 

the  case,  might  and  ouglit  to  have  been  foreseen  or  anticipated 

by   an   ordinarily   reasonaljle   and    prudent  man,  as   reasonably 

likely  to  flow  from  the  act.    Iloag  vs.  Lahe  Shore^  etc.,  Rd.  Co., 

85  Penn.  St.,  293. 

[See  Proximate  Cauae.'^ 

Contractor's  »frli?rence. — The  (^ourt  instructs  the  jnr\',  as  a  mat- 
ter of  law,  that  wlien  woi-k  is  contracted  to  be  done  by  a  con- 
tractor, the  owner  retaining  or  exercising  no  control  over  the 
manner  of  doing  the  work,  and  the  work  is  not  of  itself  danger- 
ous, luit  only  becomes  so  by  the  negligence  of  the  contractor, 
then  the  employer  is  not  lialfle  for  injuries  resulting  from  the 
negligence  of  the  contractor. 


IN    CIVIL    ACTIONS.  259 

That  when  work  is  contracted  to  be  done  which  is  dangerous 
of  itself,  unless  guarded,  and  the  employer  makes  no  in-ovision 
in  his  contract  for  its  being  guarded,  and  makes  no  reasonal)lc 
effort  to  guard  it  himself,  then  he  is  negligent,  and  if  injury 
i-esults  therefrom,  he  cannot  escape  liability,  on  the  ground  that 
the  work  was  done  l)y  a  contractor.  Wood  ys^  Ind.  S.  D.,  44:  la., 
27;  Hale  vs.  Johnson,  80  111.,  185. 

Contributory  and  Gross  Neglig-ence. — Although  the  jury  may  be- 
lieve, from  the  evidence,  that  the  defendant's  servants  were 
guilty  of  negligence,  which  contributed  to  the  injury  {or  death) 
in  question,  still,  if  the  jury  further  find,  from  the  evidence, 
that  the  plaintiff  {or  deceased)  was  also  guilty  of  negligence, 
which  directly  contributed  to  the  injury,  then  the  plaintiff  can- 
not recover  in  this  suit,  unless  the  jury  further  find,  from  the 
evidence,  that  the  negligence  of  the  defendant's  servants  was 
malicious  and  wilful,  or  wantonly  reckless,  showing  an  utter  dis- 
re«-ard  foi-  the  rights  and  property  of  the  plaintiff  {or  the  life 
of  the  deceased), 'An^  that  the  negligence  of  the  plaintiff  was 
but  slight,  as  explained  in  these  instructions.  Cooley  on  Torts, 
674;  Lafayette,  etc.,  Rd.  Co.  vs.  Adams,  26  Ind.,  76;  Mulher- 
rin  vs.  Delaware,  etc.,  Rd.  Co.,  81  Penn.  St.,  366;  Chicago,  etc., 
Rd.  Co.  vs.  Donahue,  75  111.,  106;  Brown  vs.  Hannibal,  etc., 
Rd.  Co.,  50  Mo.,  461;  Cooper  vs.  Cent.  Rd.  Co.,  44  la.,  134; 
Burham  vs.  8t.  Louis,  etc.,  Ltd.  Co.,  56  Mo.,  338. 

That  although  the  jury  may  believe,  from  the  evidence,  that 
the  defendant  was  guilty  of  negligence  upon  the  occasion  in 
question,  which  contributed  directly  to  the  injury  complained 
of,  yet,  if  they  further  believe,  from  the  evidence,  that  the 
plaintiff  was  also  guilty  of  negligence  which  contributed  directly 
to  the  injury,  then  the  plaintiff  cannot  recover  in  this  suit,  unless 
the  jury  further  find,  from  the  evidence,  that  the  conduct  of 
the  defendant's  servants  Avas  malicious  and  wilful,  or  wantonly 
reckless. 

The  court  instructs  the  jury,  that  if  they  believe,  from  the 
evidence,  that  the  {deceased)  might,  in  the  exercise  of  ordinary 
care  and  caution,  have  seen  the  danger  and  avoided  it,  and  that 
his  omission  to  do  so  directly  contributed  to  the  injury,  then  he 
was  guilty  of  such  negligence  as  will  prevent  a  recovery  in  this 


2G0  INSTRUCTIONS 

suit,  unless  the  jury  further  fiiul,  from  the  evidence,  that  the 
injurv  was  caused  by  the  wilful,  intentiunul  or  wantonly  reckless 
acts  of  the  defendant  or  its  servants. 

If  the  jury  believe,  from  the  evidence,  that  tlie  defendant,  or 
its  servants,  were  guilty  of  negligence,  as  explained  in  these  in- 
structions, upon  the  occasion  referred  to,  and  that  the  plaintiff 
was  injured  thereby,  as  stated  in  the  declaration,  and  that  he 
has  sustained  damage  by  reason  thereof ;  and  also  that  the  plaintiff 
was  himself  guilty  of  slight  negligence,  which  contributed  to  the 
injury,  and  without  which  the  accident  would  not  have  hap- 
pened, still  the  defendant  would  be  liable  in  this  case;  provided, 
the  jury  further  believe,  from  the  evidence,  that  the  servants  of 
the  defendant  saw  the  danger,  to  which  the  plaintiff  was  exposed, 
in  time  to  have  averted  it,  and  l)y  the  exercise  of  ordinary  care 
and  prudence,  could  have  prevented  the  injury.  Wharton  on 
Xeg.,  §  301;  Cooley  on  Torts,  075;  Harlan  vs.  St.  Louis,  etc., 
Rd.  Co.,  65  Mo.,  22. 

Note.— In  Illinois,  Georgia  and  Tennessee,  it  soems  to  be  hold  that  a 
party  guilty  of  contributory  negligence,  may  recover  for  injuries  sustained 
through  the  negligence  of  another;  provided,  the  negligence  of  the  other 
party  is  gross  and  the  contributory  negligence  is  slight.  The  next  twelve 
instructions  are  drawn  with  reference  to  this  view  of  the  law. 

Contributor  J  Xegliireiice  Slight. — The  court  instructs  the  jury,  that 
while  a  person  is  hound  to  use  reasonable  care  to  avoid  injury, 
yet  he  is  not  held  to  the  higliest  degree  of  care  and  prudence,  of 
which  the  human  mind  is  capable;  and  to  authorize  a  recovery 
for  an  injury,  he  need  not  be  wholly  free  from  negligence;  pro- 
vided, his  negligence  is  but  slight,  and  the  other  party  be  guilty 
of  <rross  nefj-liirence,  as  defined  in  these  instructions. 

And  in  this  case,  although  the  jury  may  believe,  from  the 
evidence,  that  the  plaintiff  was  guilty  of  some  slight  negligence, 
vet  if  the  jury  further  believe,  from  the  evidence,  that  the 
l>laintiff's  negligence  was  but  slight,  and  that  the  defendant's 
sL'rvants  were  gnilty  of  gross  negligence,  as  explained  in  these 
instructions,  and  that  the  injuries  complained  of  were  caused 
ilicrcby,  then  the  plaintiff  is  entitled  to  recover. 

The  court  further  instructs  the  jury,  that  if  they  believe,  from 
the  evidence,  that  the  plaintiff  was  guilty  of  only  slight  negligence, 


IN    CIVIL    ACTIONS.  261 

which  contributed  to  the  injury,  and  that  the  defendant  {servant-^ 
of  the  defendant)  were  w^anting  in  the  care  and  prudence  whicli 
a  very  careless  man  woukl  ordinarily  exercise  under  the  same  cir- 
cumstances, then  the  defendant  was  guilt}^  of  gross  negligence; 
and  if  the  jury  further  believe,  from  the  evidence,  that  such  gross 
negligence  was  the  cause  of  the  injury  in  question,  as  charged  in 
the  declaration,  and  that  the  negligence  of  the  plaintiff  was  but 
slight,  then  they  should  find  the  issues  for  the  plaintiff.  Lycom- 
ing Ins.  Co.  vs.  Barring er.^  73  111.,  230. 

The  court  instructs  the  jury,  that  while  a  person,  walking  on  a 
public  highway,  is  bound  to  use  all  reasonable  care  and  caution 
to  avoid  injury,  yet  he  is  not  held  to  the  highest  possible  degree  \y^ 
of  precaution  and  prudence ;  and  to  authorize  a  recovery  for  in- 
juries  negligently  inflicted,  the  plaintiff  need  not  be  wholly  free 
from  negligence ;  provided,  his  negligence  is  slight  in  itself,  and 
the  negligence  of  the  other  party  is  gross. 

And  in  this  case,  though  the  jury  may  believe,  from  the  evi- 
dence, that  the  plaintiff  was  guilty  of  some  slight  negligence, 
yet,  if  the  jury  further  believe,  from  the  evidence,  that  the  de- 
fendant was  guilty  of  gross  negligence,  and  that  the  injury  com-  \/ 
plained  of  was  caused  thereby,  and  that  the  negligence  of  the 
plaintiff  was  but  slight,  then  the  plaintiff  is  entitled  to  recover. 

The  court  instructs  the  jury,  that  the  question  of  the  liability 
of  the  defendant  does  not  depend  wholly  upon  the  absence  of 
all  negligence  upon  the  part  of  the  plaintiff  {or  deceased).,  but  it 
depends  upon  the  relative  degree  of  care,  or  want  of  care,  mani- 
fested by  both  parties,  as  shown  by  the  evidence.  And  in  this 
case,  although  the  jury  may  believe,  from  the  evidence,  that  the 
plaintiff  {or  deceased)  was  not  wholly  without  fault,  yet,  if  they 
further  believe,  from  the  evidence,  that  the  defendant  was  guilty 
of  gross  negligence,  upon  the  occasion  referred  to,  and  that  the 
injury  complained  of  was  occasioned  by  such  gross  negligence; 
and  further,  that  the  negligence  of  the  plaintiff  was  but  slight, 
then  the  jury  may  find  the  defendant  guilty. 

The  jury  are  instructed,  that  if  they  believe,  from  the  evidence, 
that  upon  the  occasion  referred  to  by  the  witness,  a  bell  was  not 
rung  nor  a  whistle  sounded,  at  a  distance  of  (80  rods)  from  the 
crossing,  and  kept  ringing  or  whistling  until  the  crossing  was 


262  INSTKUCTIONS 

1-eac'hcd,  and  that  the  plaintiff  was  lulled  into  security  by  reason 
of  such  neglect  on  the  part  of  the  defendant,  and  in  attempting 
to  cross  the  railroad  track,  was  struck  and  injured,  as  charged  in 
the  declaration,  then  the  plaintiff  will  he  entitled  to  recover  in 
this  suit,  even  though  he  was  guilty  of  slight  negligence,  if  the 
jury  believe,  from  the  evidence,  that  his  negligence  was  but 
slight.     Chi.  A  A.  lid.  Co.  vs.  Elmore,  07  111.,  170. 

The  court  instructs  the  jury,  that  to  entitle  the  plaintiff  to  re- 
cover, the  jury  must  believe,  froni  the  evidence,  that  the  injury 
complained  of  was  occasioned  by  the  carelessness  or  negligence 
of  the  defendant,  or  its  servants,  in  the  manner  charged  in  the 
declaration.  And  if  the  jury  believe,  from  the  evidence,  that 
the  plaintiff  was  guilty  of  negligence,  contributing  to  the  injury, 
then  to  entitle  plaintiff  to  re('Over,  the  jury  must  further  believe, 
from  the  evidence,  tliat  the  negligence  of  the  defendant  was  gross, 
and  that  of  the  plaintiff'  was  but  slight;  and  if  the  jury  believe 
from  the  evidence,  that  the  negligent  conduct  of  the  plaintiff 
contributed  as  much,  or  nearly  as  much,  to  produce  the  injury 
as  that  of  the  defendant,  then  the  plaintiff  cannot  recover,  and 
the  jui-y  should  iiud  for  the  defendant. 

That  in  an  action  against  a  railroad  (jompany,  to  recover  for 
injuries,  occasioned  by  the  alleged  negligence  of  the  company  in 
running  its  train,  althougli  the  servants  of  the  company  may  have 
'been  guilty  of  negligence,  contributing  to  the  injury  complained 
of,  still,  if  the  plaintiff  could,  by  the  exercise  of  ordinary  care 
and  prudence,  have  avoided  the  injury,  he  cannot  recover. 
Chicago  c5  A.  Rd.  Co.  vs.  Jacobs,  63  111.,  178. 

Death  Caused  by  Neglif?ent  Acts. — Tlic  court  instructs  the  jury, 
that  even  if  they  sliould  believe,  from  the  evidence,  that  the 
deceased  was  guilty  of  some  negligence,  upon  the  occasion 
referred  to,  still,  if  they  further  believe,  from  the  evidence,  that 
the  servants  and  agents  of  the  company  were  guilty  of  gross 
negligence,  and  that  the  negligence  of  the  deceased  was  but 
slight,  aiul,  fui'ther,  that  the  persons  for  whose  use  this  suit  is 
brouglit  have  sustained  damage  in  tlie  death  of  the  deceased,  as 
charged  in  the  declaration,  then  the  jury  should  find  the  issues 
for  the  })laintiff. 


IN    CIVIL    ACTIONS.  263 

The  jury  are  instructed,  that  the  law  is,  that  if  a  railroad 
company  is  guilty  of  gross  negligence,  resulting  in  the  death  of 
a  person,  and  such  person  is  guilty  of  only  slight  negligence 
contributing  to  the  injury,  such  contributory  negligence  will  not 
of  itself  prevent  a  recovery  against  the  company.  jP,,  P.  cfe  J. 
Rd.  Co.  vs.  Chamj),  75  III,  577. 

The  court  instructs  the  jury,  that  even  though  they  may  be- 
lieve, from  the  evidence,  that  the  deceased  was  guilty  of  some 
negligence,  yet,  if  they  further  find,  from  the  evidence,  tliat  the 
negligence  of  the  deceased  was  but  slight,  and  that  the  negli- 
gence of  the  defendant  was  gross ;  and  they  further  find,  from 
the  evidence,  that  the  death  of  the  deceased  was  caused  by  such 
gross  negligence  on  the  part  of  the  defendant,  then  the  negli- 
gence of  the  deceased  will  not  prevent  a  recovery  in  this  caso, 
if  the  jury  find,  from  the  evidence,  that  all  the  other  material 
averments  in  the  declaration  are  proved.  III.  Cent.  Rd.  Co.  vs. 
(Joddard,  72  111.,  567. 

Equal  Negligence. — The  court  instructs  the  jury,  that  though 
they  may  believe,  from  the  evidence,  that  the  defendant  was 
guilty  of  negligence  upon  the  occasion  in  question,  and  that 
such  negligence  contributed  to  the  injury  complained  of,  yet,  if 
the  jury  further  believe,  from  the  evidence,  that  the  plaintiff 
was  also  guilty  of  an  equal,  or  nearly  equal,  degree  of  negli- 
gence, directly  contributing  to  the  injury,  and  without  which  it 
could  not  have  occurred,  then  the  jury  should  find  the  defend- 
ant not  guilty. 

In  this  case,  if  the  jury  believe,  from  the  evidence,  that  both 
the  deceased  and  the  agents  and  servants  of  the  railroad  com- 
pany were  guilty  of  gross  negligence,  contributing  to  the  injury 
of  which  the  deceased  died,  then  the  jury  should  find  their  ver- 
dict for  the  defendant. 

Injury  the  Result  of  Negligence  and  Accident. — The  court  instructs 
the  jury,  as  a  matter  of  law,  that  if  a  person  receives  an  injury 
as  the  combined  result  of  an  accident  and  of  neg-lio-ence  on  the 
part  of  another,  and  the  accident  would  not  have  occurred  but 
for  such  negligence,  and  the  danger  could  not  have  been  fore- 
seen or  avoided  by  tl^e  exercise  of  reasonable  care  and  prudence, 


264  INSTKUCTIOXS 

oil  the  part  of  the  person  injured,  then  tlie  [tei'son  guilty  of  the 
negligence  will  be  liable  for  the  injury  received.  City  of  Au- 
rora vs.  Pulfer,  Qio  111.,  270. 

The  court  instructs  the  jury,  that  to  entitle  tJie  plaintiff  to 
recover  in  this  suit,  it  nnist  appear,  from  the  evidence,  that  the 
injurv  coni[)l;uned  of  was  occasioned  by  the  want  of  attention, 
carelessness  or  negligence  on  the  part  of  the  defendant  or  its 
servants,  as  charged  in  the  declaration,  and  was  not  simply  the 
result  of  an  accident;  and  if  the  jury  believe,  from  the  evi- 
dence, that  the  injury  resulted  from  an  accident  which  could 
not  have  been  foreseen  or  guarded  against,  by  the  exercise  of 
ordinary  and  reasonable  care  and  prudence,  on  the  part  of  the 
defendant,  then  the  plaintiff  cannot  recover,  and  the  jury  should 
find  for  the  defendant. 

Wrongful  and  Voluntary  Exposure. — The  jury  are  instructed,  that 
if  a  man  wrongfully  gets  uj)on  a  freight  car  and  voluntarily 
puts  himself  in  a  dangerous  place  on  a  car,  while  in  motion,  he 
does  so  at  his  own  risk;  and  if  the  j^ersons  in  charge  of  the  car 
see  him  and  do  not  notify  him  that  he  is  in  danger,  this  is  not 
such  negligence  as  will  render  the  company  liable — the  persons 
in  (charge  of  the  car  are  under  no  legal  obligation  to  notify  him 
that  such  place  is  a  dangerous  one. 

Ordinary  Care  Defined. — The  court  instructs  the  jury,  that  ordi- 
nary care  depends  upon  the  cir('umstances  of  each  ])articular 
case,  and  is  such  care  as  a  person  of  ordinary  ])rudeuce  and  skill 
would  usually  exercise  under  the  same  or  similar  circumstances. 
Norfolk,  etc.,  Rd.  Co.  vs.  Ormshij,  27  Gratt,  455. 

Slij^lit  Nefjlijjfcnce  Doflned. — That  slight  negligence  means  the 
absence  of  that  degree  of  care  and  vigilance  which  persons  of 
extraortliuary  })ru(lence  and  foi'csight  are  ac(;ustomed  to  use 
under  siniilar  circumstances.  Hammond  vs.  Town  of,  etc.,  40 
Wis.,  35. 

Gross  Ncg'litjonce  Defined. — That  by  the  term  gross  negligence, 
as  used  in  these  iii-tructioiis,  is  meant  a  wi'ongful  act  or  omis- 
sion, wilfully    uuJ    maliciously    done,  or   o^nitted,  or    wantonly 


IN    CIVIL    ACTIONS.  265 

reckless  conduct,  showing  an  utter  disregard  of  the  rights  of 
others. 

That  the  term  gross  negligence,  as  used  in  this  class  of  cases, 
means  the  want  of  that  degree  of  prudence  and  care  which 
even  extremely  careless  and  imprudent  men  are  accustomed  to 
exercise,  under  the  same  or  similar  circumstances. 

Gross  negligence  is  defined  to  be  the  want  of  slight  care,  or 
an  utter  disregard  of  consequences  in  the  performance  of  a 
given  act. 

Collision  on  the  Highway. — The  jury  are  instructed,  as  a  matter 
of  law,  that  the  rights  of  footmen  and  horsemen,  on  a  public 
highway,  are  equal,  and  the  law  requires  both  parties  to  use  all 
reasonably  prudent  precautions  to  avoid  accident  and  damage  to 
themselves  or  others. 

If  the  jury  believe,  from  the  evidence,  that  at  the  time  of  the 
alleged  injury,  the  plaintiff  was  walking  along  one  of  the  public 
streets  of  the  city  of  C,  with  his  back  towards  the  said  S.  W., 
and  that  at  the  same  time  the  said  S.  W.  was  riding  a  horse  on 
the  same  street,  in  the  direction  of  the  plaintiff,  and  that  the 
said  S.  W.  saw,  or  by  the  exercise  of  reasonable  care  and  cau- 
tion could  have  seen,  the  plaintiff  in  season  to  have  stopped  his 
horse,  altered  its  course,  or  in  some  way  avoided  the  accident ; 
and  if  the  jury  further  believe,  from  the  evidence,  that  the  said 
S.  W.  did  not  do  so,  but  carelessly  and  negligently  permitted 
the  horse  Avhich  he  was  riding  to  run  against  the  plaintiff  and 
knock  him  down,  and  thereby  injured  him,  as  charged  in  the 
declaration,  this  would  be  negligence  on  the  part  of  S.  W. ;  and 
if  the  jury  further  believe,  from  the  evidence,  that  the  said 
S.  W.  was,  at  the  time,  in  the  employ  of  the  said  defendants, 
and  pursuing  their  business,  then  the  defendants  are  liable  for 
such  negligence;  provided,  the  jury  further  believe,  from  the 
evidence,  that  the  plaintiff  was  himself  without  fault  or  negli- 
gence which  contributed  to  the  injury. 


2G6  INSTEUCTIONS 


NEGLIGENCE    BY    RAILROAD    COMPANIES. 

Duly  to  Funiisli  Safe  Macliiiu'ry,  Etc. — The  court  instructs  the 
jury,  that  it  is  the  duty  (;f  railroad  companies  to  use  all  reason- 
able means  and  efforts  to  furnish  good  and  well  constructed 
machinery,  adapted  to  the  purposes  of  its  use,  of  good  material, 
and  of  the  kind  that  is  found  to  be  safest  Avhen  applied  to  use; 
and  while  they  arc  not  required  to  seek  aiul  apply  every  new 
invention,  they  must  a(l()[)t  such  as  are  found,  l)y  experience,  to 
combine  the  greatest  safety  with  practical  use.  St.  Louis,  etc., 
Rd.  Co.  \s.Valirius,  56  Ind.,  511;  Wedgeioood  vs.  Chicago, 
etc.,  Rd.  Co.,  41  Wis.,  478;  Pittsburgh  R.  R.  Co.  vs.  Nelson, 
51  Ind.,  150;  Porter  vs.  Ilanrdhal,  etc.,  Rd.  Co.,  GO  Mo.,  160. 

Liable  for  the  Torts  of  their  Servants,  When. — Kail  road  com- 
panies are  responsible  to  passengers  for  the  unlawful  acts  of 
their  servants  and  agents  em})loyed  in  running  their  trains,  when 
such  wrongful  acts  are  committed  in  connection  with  the  busi- 
ness intrusted  to  them,  and  spring  from,  or  grow  immediatelj 
out  of,  such  business.  Gasway  vs.  Atlanta,  etc.,  Rd.  Co.,  58 
Ga.,  216;  Bass  vs.  Chicago,  etc.,  Rd.  Co.,  42  Wis.,  654;  Broion 
vs.  Ilannihal,  etc.,  Rd.  Co.,  ^Q  Mo.,  588. 

The  jury  are  instructed,  tliat  if  the  servants  of  a  railroad 
company,  while  in  the  discharge  of  their  duties,  pervert  the 
appliances  of  the  company  to  wanton  or  malicious  purposes,  to 
the  injury  of  others,  the  company  is  liable  for  such  injuries.  C, 
B.  <Jb  Q.  Rd.  Co.  vs.  Dickson,  63  111.,  151. 

Negligence,  per  se. — The  court  instructs  the  jury,  that  it  is  neg- 
ligent for  persons  engaged  in  using  cars  on  a  railroad  track  to 
put  a  car  in  motion  where  it  may  do  injury  to  others,  without 
making  any  provision  for  stopping  it,  or  examining  to  see 
whether  any  person  is  on  or  about  other  cars  on  the  same  track, 
with  which  the  one  put  in  niotioii  may  <';»llid(';  and  if  injury 
results  therefrom  to  one  who  is  guilty  of  no  negligence  himself, 
he  will  l)e  entitled  to  recover  for  such  injury.  ,Nohle  vs.  Canning- 
ham,  74  111.,  51. 


IN    CIVIL    ACTIONS.  2C7 

Plaintiff  Must  Exercise  Ordinary  Care. — The  court  instniets  the 
jury,  that  in  an  action  against  a  raih'oad  company  to  recover  for 
injuries  occasioned  by  the  alleged  negligence  of  the  company,  in 
running  its  train,  although  the  servants  of  the  company  may 
have  been  guilty  of  negligence,  contributing  to  the  injury  com- 
plained  of,  still,  if  tlie  plaintiff  could,  by  the  exercise  of  ordinary 
care  and  prudence,  have  avoided  the  injury,  he  cannot  recover. 
Chi.  &  Alton  Ed.  Co.  vs.  Jacohs,  63  III,  178. 

The  court  instructs  the  jury,  that  to  authorize  a  recovery  for 
injuries  done  by  a  railroad  company,  it  is  not  enough  to  show 
the  company  guilty  of  negligence,  but  it  must  appear,  from  the 
evidence,  that  the  injured  pai-ty  employed  all  reasonable  means 
to  foresee  and  prevent  the  injui-y,  or  else  it  must  appear,  from 
the  evidence,  that  the  injury  was  caused  by  the  wilful  or  wan- 
■i:only  reckless  acts  of  the  servants  of  the  company.  Wharton 
on  Neg.,  §  300. 

Right  to  Prescribe  Rules. — The  jury  are  instructed  that  a  rail- 
road comjiany  has  a  right  to  require  of  its  passengers  the  observ- 
ance of  all  reasonable  rules,  calculated  to  insure  the  comfort, 
convenience,  good  order  and  behavior  of  all  persons  on  the  train, 
and  to  secure  the  proper  conduct  of  its  business;  and  if  a  pas- 
senger wantonly  disregards  any  such  reasonable  rule,  the  obliga- 
tion to  carry  him  farther  ceases,  and  the  C(jmpany  may  expel 
him  from  the  train  at  any  regular  station,  using  no  more  force 
than  may  be  necessary  for  that  purpose.  Sandford  vs.  Eighth 
Ave.,  etc.,  Rd.  Co.,  23  N.  Y.,  343;  /.  C.  Ed.  Co.  vs.  Whitmore, 
43  111.,  420;  Craioford  vs.  Cincinnati,  etc.,  Ed.  Co.,  26  Ohio 
St.,  580;  State  vs.  Chovin,  7  la.,  204;  Shelton  vs.  Lake  Shore, 
etc.,  Ed.  Co.,  29  Ohio  St.,  214. 

The  court  instructs  the  jury,  that  whatever  rules  tend  to  the 
comfort,  order  ard  safety  of  the  passengers  on  a  railroad,  the 
companies  are  authorized  to  make  and  enforce;  but  such  rules 
must  be  reasonable  and  uniform.  A  rule  setting  apart  a  car  for 
the  exclusive  use  of  ladies,  and  gentlemen  accompanied  by 
ladies,  is  a  reasonable  rule,  and  it  may  be  enforced.  C.  &  N. 
W.  Ed.  Co.  xs.  Williams,  55  111.,  185;  Bass  vs.  Chi.  cfc  iY.  F. 
Ed.  Co.,  36  Wis.,  450. 


2G8  INSTKUCTIONS 

A  railroad  company  has  tlie  lawful  right  to  make  all  reason- 
ably necessary  rules  for  the  conduct  of  its  employes,  and  also  of 
its  passengei'S. 

And  whether  such  rules  are  adecpiate  to  secure  the  safety  of 
others,  and  the  safe  managonient  of  its  trains,  is  a  question  of 
fact  for  the  jury.  6'.,  B.  d-  Q.  R.  R.  Co.  vs.  McLallen,  8i  111., 
100. 

Tlic  court  instructs  the  jury,  that  the  use  of  grossly  profane 
and  abusive,  or  obscene  language  by  a  passenger  in  a  railwav 
car,  where  there  are  ladies,  is  such  a  l)i'cach  of  decorum,  no 
matter  if  it  is  provoked,  as  will  work  a  forfeiture  of  his  right  to 
be  carried  as  a  passenger,  and  the  conductor  has  a  right  to  cause 
him  to  be  expelled  from  the  cars,  using  no  more  force  than  is 
necessary  for  that  purpose.  C,  B.  di  Q.  R.  R.  Co.  vs.  Griffin 
68  111.,  499. 

Expelliii!,'  a  Person  from  the  Cars. — The  jury  are  instructed,  that 
if  the  condiu'.tor,  or  other  person,  in  charge  of  a  train  of  cars 
attempts  to  expel  a  person,  who,  by  the  rules  of  the  company, 
has  no  right  to  ride  thereon,  he  must  use  no  more  force  than  is 
necessary  to  accomplish  that  purpose;  and  if  he  does  use  more 
force  than  is  necessary,  and  the  person  so  put  off  is  thereby  in- 
jured, the  company  will  be  liable. 

If  a  person  gets  on  a  railroad  car,  in  order  to  ride  without 
payment  of  fare,  and  without  the  consent  of  the  persons  in 
charge  of  the  train,  ho  may  be  ejected  from  the  cars,  prudently, 
and  in  such  a  manner  as  not  unnecessarily  to  endanger  his  per- 
sonal safety;  but  if  reasonable  care  and  prudence  are  not  exer- 
cised, and  the  person  is  thereby  injured,  the  company  will  be 
liable,  and  it  cannot  excuse  itself  upon  the  ground  that  the 
wi'oiig  was  mutual. 

The  jury  are  instructed,  that  to  render  a  railroad  company 
lial)le  for  injuries  resulting  from  an  expulsion  from  one  of  its 
cars,  it  is  not  incumbent  on  the  person  injured  to  show  that 
actual  force  or  violence  were  resorted  to  or  used  upon  his  per- 
son. If  the  jury  believe,  from  the  evidence,  that  threats  to  use 
force  and  violence  M'ere  made,  accoinpanie*!  bv  acts  of  such  a 
character  as  were  reasoiuibly  calculated  to  induce  in  the  mind 
of  an  ordinarily  rational  person  the  belief  that  force  and  vio- 


IN    CIVIL    ACTIONS.  2G0 

leiice  would  be  used,  unless  he  leave  the  train,  and  plaintiff  left 
in  consequence  of  such  threats,  then  the  threats  would  be  equiv- 
alent  to  the  use  of  force  and  violence,  as  regards  this  siiit. 

If  the  jury  believe,  from  the  evidence,  that  the  plaintiff  was 
injured  by  the  acts  of  the  conductor  of  one  of  defendant's  trains, 
as  charged  in  the  declaration,  and  that  such  acts  were  done  by 
the  conductor  while  acting  for  the  company,  and  within  the 
scope  of  his  employment,  as  such  conductor,  then  such  acts  are 
in  law  the  acts  of  the  railroad  company. 

Passenger  Can  Only  be  Put  Off  at  a  Station  —  Illinois  Statute. — That 
if  a  person  on  a  railroad  train  or  car,  on  reasonable  demand,  re- 
fuse to  pay  his  fare,  the  conductor  of  the  train  may  remove  such 
person,  or  cause  him  to  be  removed  from  the  car,  at  any  regular 
station,  but  only  at  a  regular  station,  unless  the  person  to  be  re- 
moved consents  to  be  put  off  at  some  other  place. 

Injuries  to  Passengers. — The  court  instructs  the  jury,  as  a  matter 
of  law,  that  railroad  corporations  are  required  to  use  all  reason  ■ 
able  precautions  for  the  safety  of  the  traveling  public,  whether 
in  the  construction  and  operation  of  their  engines  and  cars,  or 
the  erection  of  their  depots,  or  the  construction  of  their  tracks, 
or  the  approaches  to  their  trains,  and  it  is  their  duty  to  furnish 
safe  approaches  to  their  passenger  cars — if  any  of  these  are  in- 
secure  or  unsafe,  when  it  could  have  been  avoided,  by  a  reason- 
able effort  and  precaution,  and  injury  results,  the  company  will 
be  liable  for  damages  resulting  therefrom.  Chi.  d;  A.  Rd.  Co. 
y^.Wilson,  63  Ill.,l6T. 

[/See  Common  Carriers  of  Passengers.] 

Note. — The  obligation  of  railroad  companies  to  fence  the  track  of  their 
roads,  to  give  warning  at  highway  crossings,  and  their  liability  for  damages 
occasioned  by  fire  escaping  from  their  locomotives,  are  mainly  imposed  or 
regulated  by  the  statutes  of  the  several  states;  and  these  statutes  differ 
somewhat  in  their  details.  The  following  instructions  can  readily  be  adapted 
to  the  statutes  of  the  different  states,  by  making  the  changes  necessary  for 
that  purpose. 

FENCING    TRACK. 

Statutory  Provisions— Fencing  the  Track. — The  jury  are  instruced, 
tliat  by  the  law  of  this  state,  every  raili-oad  corporation  is  required, 
within  {six  m'onths)  after  any  part  of  its  line  is  open  for  use,  to 
erect,  and  thereafter  maintain,  fences  on  both  sides  of  so  much 


270  INSTRUCTIONS 

of  its  road  as  is  open  for  use,  suitable  and  siitHc;ient  to  prevont 
cattle,  horses,  sheep,  hogs,  or  other  stock,  from  getting  on  to  such 
railroad;  except  at  the  crossings  of  public  roads  and  highways, 
and  within  such  portions  of  cities,  and  incorporated  towns  and 
villages,  as  are  laid  out  and  platted  into  lots  and  l)locks. 

If  the  jury  believe,  from  the  evidence,  tiiat  the  {Jiorae)  \\\ 
question  got  upon  the  defendant's  railroad  track  upon  the  occa- 
sion referred  to,  not  at  the  crossing  of  a  public;  road  or  highway, 
and  not  within  any  portion  of  a  city,  incorporated  town,  or  vil- 
lage, which  is  laid  out  and  platted  into  h)ts  and  l)locks,  and  that 
that  portion  of  the  road  had  been  in  operation  six  months  and 
more,  before  the  accident  in  question;  and  if  the  jury  further 
believe,  that  the  fence  on  the  side  of  the  track,  at  the  point  in 
question,  through  the  negligence  of  the  defendant,  was  out  of 
repair,  and  was  not  sufficient  to  prevent  horses  getting  on  to  such 
railroad,  and  that  the  (Jiorse)  got  on  to  the  track  by  reason  of  the 
insufficiency  of  the  fence,  and  was  there  injured,  as  charged  in 
the  declaration,  then  it  is  immaterial  whether  the  company  was 
careful  or  neirli"'ent  in  runnini;  its  engine  and  cars.  The  neglect 
to  keep  up  a  sufficient  fence  fixes  the  liability  of  the  company 
for  all  damage  to  stock  occasioned  thereby;  provided,  the  owner 
of  the  stock  is  guilty  of  no  fault  or  negligence  contributing  to 
the  injury. 

If  the  jury  believe,  from  the  evidence,  that  the  stock  in  ques- 
tion, got  upon  the  defendant's  railroad  track  at  a  point  where  the 
company  was,  by  law,  bound  to  erect  and  maintain  fences,  as 
explained  in  the  preceding  instructions;  that  that  portion  of  the 
road  had  been  in  operation  (.s-i.c  months)  and  more,  and  that  the 
fence,  where  the  stock  got  upon  the  track,  was,  through  the 
carelessness  and  neglect  of  the  company,  not  then  suital)le  and 
sufficient  to  prevent  the  stock  getting  upon  the  track,  and  that 
the  stock  did,  in  fact,  get  upon  the  track  by  reason  of  the  insuf- 
ficiency of  the  fence,  and  was  there  injufcd  and  damaged,  with- 
out any  fault  or  negligence,  on  part  of  the  plaintiff,  thou  the 
plaintiff  has  a  right  to  recover  in  this  suit. 

Company  Must  Exercise  Reasonable  Care. — The  court  instructs  the 
jury,  as  a  matter  of  law,  that  when,  by  the  use  of  ordinaiw  care 
and  diligence,  on  the  part  of  the  servants  of  a  i-uilroad  company, 


IN    CIVIL    ACTIONS.  271 

animals  straying  upon  its  tracks  can  be  saved  from  injury,  then 
it  is  the  duty  of  such  servants  to  exercise  that  degree  of  care, 
and  a  faihire  to  do  so,  if  proved,  renders  the  company  liable  for 
any  damages  thereby  sustained.  T.^  P.  &  ^Y.  Rd.  Co.  vs. 
Ingraham,  58  111.,  120;  Wharton  on  Neg.,  §  397;  Parker  vs. 
Ed.  Co.,  34  la.,  399. 

Although  the  jury  may  believe,  from  the  evidence,  that  the 
stock  in  question  got  upon  the  railroad  track  of  the  defendant, 
without  any  negligence  upon  the  part  of  the  company,  still,  if 
the  jury  further  believe,  from  the  evidence,  that  the  person  in 
charge  of  the  engine,  by  the  exercise  of  reasonable  and  ordinary 
care,  and  without  danger  to  his  engine  and  train,  could  have 
avoided  the  injury,  and  did  not  do  so,  then  the  company  would 
be  liable  for  such  injury;  provided,  that  the  jury  further  believe, 
from  the  evidence,  that  the  owner  of  the  stock,  or  the  persons 
having  it  in  charge,  were  guilty  of  no  negligence  which  con- 
tributed to  such  injury.  Wharton  on  Neg.,  §893;  Chi.  <£  iV. 
W.  Rd.  Co.  vs.  Barrie,  55  111.,  226;  Fames  vs.  S.  c&  L.  Rd.  Co., 
98  Mass.,  560;  Locke  vs.  St.  Paul,  etc.,  15  Minn.,  350;  Reed- 
ham  \%.  Railroad,  37  Cal.,  409;  Shephard  \&.  Railroad,  Zb 
N.  Y.,  641. 

The  court  instructs  the  jury,  that  when  a  railroad  company 
fails  to  fence  its  track,  as  required  by  statute,  it  must  see  that 
its  servants  so  conduct  its  trains  that  injuries  shall  not  result  to 
stock  that  may  get  upon  its  track,  if  it  can  be  done  by  care  and 
caution.  If  the  company  fails  to  fence  its  track,  it  takes  upon 
itself  the  hazard,  and  when  injury  results  therefrom,  it  must 
respond  in  damage.  Toledo,  P.  t&  W.  Rd.  Co.  vs.  Lavery,  71 
111.,  522;   Toledo^,W.  i&  W.  Rd.  Co.  vs.  MoGinnis,   71  111.,  346. 

Company  Only  Held  to  Reasonable  Care— Casual  Breach  in  Fence.— 

The  court  instructs  the  jury,  that  while  railroad  companies  are 
not  required  to  keep  such  a  guard  on  their  roads  as  to  see  a 
breach  in  the  fence  and  repair  it  the  instant  it  occurs,  still  the 
law  does  require  them  to  keep  such  a  force  as  will  discover 
breaches  and  openings  in  their  fences,  and  to  close  them  within 
a  reasonable  time;  and  if  they  neglect  to  do  so  within  a  reasona- 
ble time,  it  is  a  neglect  of  duty  that  will  render  them  liable  for 


272  INSTRUCTIONS 

:iii  injury  to  stock  escaping  on  to  the  road  through  such  open- 
ings; provided,  the  owner  or  the  person  having  the  stock  in 
charge  is  guilty  of  no  negligence  which  contrihnted  to  the 
injury.       C.  c6  V.  W.  AV.  Co.  vs.  Harris,  54  111.,  528. 

If  the  jury  believe,  from  the  evidence,  that  the  defendant 
had  erected  a  fence  suitable  and  sufficient  to  prevent  horses  and 
cattle,  sheep  and  other  stock  from  getting  upon  the  railroad  at 
the  point  where  the  animals  in  question  got  upon  the  track,  and 
had  maintained  the  fence  in  good  repair  up  to  {the  evening 
hefore  the  acoident),  and  that  the  injury  was  occasioned  by  the 
fence  being  broken  down  at  tlie  time  of  the  accident,  then  neg- 
ligence on  the  part  of  the  defendant  ought  not  to  be  inferred, 
unless  the  jury  further  find,  from  the  evidence,  that  the  servants 
of  the  company  knew  of  the  fence  being  down,  or  else  that  it 
had  been  down  for  such  a  length  of  time  that,  in  the  exercise  of 
reasonable  care  and  wat('hfulness,  they  ought  to  have  known  of 
its  being  down,  and  failed  to  repair  it  within  a  reasonable  time 
thereafter.      O.  (&  A.  Rd.  Co.  vs.  [Jmphenour,  09  111.,  lOS. 

The  court  instructs  the  jury,  as  a  matter  of  law,  that  when  a 
raili-oad  is  enclosed  by  a  suitable  and  sufficient  fence,  and  a 
a  casual  breach  occurs  therein,  without  the  knowledge  or  fault 
of  the  company,  and  through  such  breach  stock  get  upon  the 
track  and  are  injured,  the  company  is  not  liable,  unless  it  has 
had  a  reasonable  time  to  discover  such  breach,  or  has  been  noti- 
fied and  fails  to  repair  within  a  reasonable  time,  and  before  the 
injury  occurred.  Sherm.  &  Tledfield  on  Xeg.,  517;  Robinson 
vs.  The  Grand  Trunk  Rd.  Co.,  32  Mich.,  322;  Davis  vs.  Chi- 
cago, etc.,  Rd.  Co.,  40  la.,  292;  Indianapolis,  etc.,  Rd.  Co.  vs. 
Truitt,  24  Ind.,  162;  Ind.  cj&  St.  Louis  Rd.  Co.  \^.  Hall,  88 
III,  308. 

If  the  jury  believe,  from  the  evidence,  that  on  {the  day  hefore 
the  injurij)  the  defendant  had  a  good  and  sufficient  fence  to 
prevent  horses,  cattle,  shee]),  hogs  and  other  stock  from  getting 
on  to  the  track,  at  the  point  in  (juestion.  ami  that  afti'r  that  it 
was  blown  down,  or  broken  d(jwn  by  trespassers,  or  otherwise, 
without  the  fault  of  the  defendant,  and  that  while  the  fence 
was  so  down,  the  plaintiff's  stock  got  through  the  broken  fence 
and  was  injured,  l^eforc  the  defendant  had  a  reas(.inable  time  in 


IN    CIVIL    ACTIONS.  273 

which  to  repair  it,  then  the  defendant  would  not  bo  liable  for 
injuries  resulting  from  the  fence  being  out  of  repair. 

If  the  jury  believe,  from  the  evidence,  that  defendant  had  a 
good  and  sufficient  fence  on  the  side  of  its  road,  through  plain- 
tiff's farm  or  pasture,  until  shortly  before  the  accident,  and  tliat 
it  was  broken  down  by  trespassers,  or  by  unruly  stock,  or  blown 
down  by  wind,  and  that  plaintifPs  horses  got  through  the  fence 
before  defendant  had  reasonable  time  to  repair  it,  then  the  jury 
sliould  find  for  the  defendant. 

The  court  further  instructs  the  jury,  that  when  a  ralli'oad 
company  builds  and  maintains  a  good  and  sufficient  fence 
through  a  farm,  and  it  is  blown  down,  burnt  down,  or  thrown 
down  by  trespassers,  and  without  the  fault  of  the  railroad  com- 
pany, then  the  company  has  a  reasonable  time  in  which  to  repair 
the  fence,  and  it  is  not  responsible  for  any  damages  which  may 
ensue  solely  from  the  insufficiency  of  the  fence  until  such  rea- 
sonable time  has  elapsed.  /.  C.  Rd.  Co.  vs.  Swearingeri,  47 
III,  206. 

Stock  Unlawfully  Rniiniu^  at  Large. — The  court  instructs  the  jury, 
that  at  the  time  in  question  it  was  unlawful  to  permit  cattle  or 
horses  to  run  at  large,  at  and  within,  etc.,  and  if  the  jury  believe, 
from  the  evidence,  that  the  plaintiff  voluntarily  permitted  the 
horse  in  question  to  run  at  large,  at  and  within,  etc.,  and  under 
such  circumstances  that  it  might  reasonably  have  been  foreseen 
or  anticipated  that  the  horse  might  get  upon  the  defendant's 
track,  then  the  plaintiff  cannot  recover  of  the  defendant  for  the 
killing  of  the  horse  by  one  of  its  trains,  upon  the  ground  alone 
that  the  company  had  failed  to  fence  its  track  at  the  place 
where  the  animal  was  killed.  Wharton  on  Neg.,  §  900;  P.^P. 
(&  J.  Rd.  Co.  vs.  Champ.,  75  111.,  577;  Indiana  Rd.  Co.  vs. 
Shimer,  17  Ind.,  295;  Jef.,  etc.,  Rd.  Co.  vs.  Adams,  43  Ind., 
402. 

The  fact  that  the  owner  of  stock  permits  it  to  run  at  large,  in 
violation  of  the  act  prohibiting  domestic  animals  from  running 
at  large,  does  not  relieve  railroad  companies  from  their  duty  to 
fence  their  roads,  nor  from  their  liability  for  stock  injured  in 
consequence  of  their  failure  to  do  so;  and  the  question  whether 
the  oM'ner  of  the  stock  has  been  guilty  of  contributory  uegli- 

18 


27-i  INSTKUCTIONS 

g;eiice  in  permitting  them  to  run  at  large,  is  one  of  fact  to  be 
determined  bv  the  jury  from  all  the  circumstances  of  the  case. 
And  to  render  the  owner  of  the  stock  guilty  of  contributory 
negligence,  in  permitting  his  stock  to  run  at  large,  it  must 
appear,  from  the  evidence,  that  he  did  so  under  such  circum- 
stances that  the  natural  and  j)n)bable  consequence  of  so  doing 
was  that  tlie  stock  would  go  upon  the  railroad  track  and  be 
injured.     Ending  vs.  Chicago  cf?  A.  Rd.  Co.,  72  111.,  25. 

The  court  instructs  the  jury,  that  the  fact,  if  proved,  that  the 
plaintiff  permitted  his  stock  to  i-un  at  lai'ge,  in  violation  of  the 
law  prohibiting  domestic  animals  fi'om  running  at  large,  does 
not  relieve  the  defendant  from  its  duty  to  maintain  a  suitable 
and  sufficient  fence  along  the  line  of  its  road,  if  the  jury  find, 
from  the  evidence,  under  the  instructions  of  the  coui-t,  that  the 
defendant  was  otherwise  bound  to  do  so;  nor  from  liability  for 
stock  injured  in  consecpience  of  its  failure  to  do  so,  if  the  jury 
find,  from  the  evidence,  under  the  instructions  of  the  court,  that 
the  defendant  is  otherwise  liable  therefor. 

The  question  whether  the  plaintiff  was  guilty  of  conti-ibutory 
negligence  in  permitting  his  cattle  to  run  at  large,  is  one  of  fact 
to  be  determined  by  the  jury  from  all  the  circumstances  of  the 
case.  And  to  render  him  guilty  of  contributory  negligence,  in 
permitting  his  stock  to  run  at  large,  the  jury  must  believe,  from 
the  evidence,  that  he  did  so  under  such  circumstances  that  the 
natural  and  proi)able  conseipience  of  so  doing  was,  that  the  stock 
would  go  u])on  the  railroad  track  and  be  injured. 

PlaintilTs  Contributory  Negligence. — The  jury  are  instructed,  that 
*v^hen  a  railway  company  fences  its  track,  as  required  by  statute, 
and  the  fence  afterwards  becomes  defective,  an  action  against 
the  company  for  injuries  to  horses  or  cattle  straying  upon  tlie 
track,  thi'ough  such  defective  fence,  cannot  be  maintained,  if  it 
appears  that  the  owner  of  the  animals  was  guilty  of  negligence, 
which  natui-ally  and  directly  (contributed  to  such  injury.  Jones 
vs.  The  Slteboijga/i  ib  Fond  du  Lac  Rd.  Co.,  42  Wis.,  300. 

Stock  Escapiiisr  and  Running  at  liarire. — If  the  jury  believe,  from 
the  evidence,  that  the  horse  in  (piesrioii  broke  out  of  the  pasture 
and  went  upon  the  railroad  track,  without  any  fault  or  neg- 


IN    CIVIL    ACTIONS.  ZIO 

ligeiice  on  the  i:)art  of  the  phxintiff,  and  was  there  killed,  and 
that  such  killing  was  the  result  of  negligence,  and  of  a  want  of 
ordinary  care  and  reasonable  caution  on  the  part  of  defendant's 
r^ervants,  then  the  plaintiff  was  not  guilty  of  such  contributory 
negligence,  as  will  prevent  a  recovery  in  this  case.  T.,  P.  *& 
TF.  Rd.  Co.  vs.  Johnson^  74  111.,  83. 

What  the  PlaintifT  Must  ProTe  to  Recover. — The  court  instructs 
the  jury,  that  to  entitle  the  plaintiff  to  recover,  he  must  prove 
every  material  allegation  in  his  declaration,  by  a  preponderance 
of  evidence.  The  jury  must  believe,  from  the  evidence,  that 
the  place  where  the  animal  got  upon  the  track  was  at  a  point 
Vv^here  the  defendant  was  bound  by  law  to  fence;  that  is,  that  it 
(was  not  at  the  crossing  of  a  public  road  or  highway,  and  was 
not  within  that  portion  of  any  city,  incorporated  town  or  village, 
which  is  laid  out  aiul  platted  into  lots  and  blocks);  and  further, 
that  defendant's  road,  at  that  point,  had  been  in  operation  {six 
months)  or  more,  and  that  the  fence,  through  the  negligence  or 
carelessness  of  the  defendant,  was  not  sufficient  to  turn  horses, 
cattle  and  other  stock;  and  if  the  plaintiff  has  failed  to  prove 
cither  of  these  things,  by  a  prei^onderance  of  evidence,  the  jury 
should  find  for  the  defendant. 

INJURIES    BY    FIEE. 

Prima  Facie  Negligence. — The  court  instructs  the  jury,  that  if 
they  believe,  from  the  evidence,  that  the  plaintiff's  j^roperty  was 
injured  by  fire,  caused  by  fire  or  sparks  escaping  from  defend- 
ant's locomotive,  while  passing  along  the  railroad,  in  manner 
and  form  as  charged  in  the  plaintiff's  declaration,  then,  under 
the  laws  of  this  state,  these  facts  make  a  prima  facie  case  of 
negligence  against  the  defendant ;  and  the  burden  of  proof  is 
then  upon  the  defendant  to  rebut  this  prima  facie  case,  by 
showing  affirmatively  that  at  the  time  in  question  the  engine 
was  properly  constructed  and  equipped  with  the  best  approved 
appliances  for  preventing  the  escape  of  fire;  that  these  aj^pli- 
ances  were  all  in  good  repair  and  condition,  as  regards  the 
escape  of  fire,  or  that  all  reasonable  care  and  caution  had  been 
taken  to  keep  them  in  such  repair  and  condition ;  and  that  the  en- 


276 


I  X  S  T  K  I'  C  T  I  n  X  R 


gine  was  carefully  and  skillfully  haudled,  as  regards  the  escape 
of  lire  therefrom;  provided,  the  plaintiff  was  guilty  of  no  fault 
or  negligence  contributing  to  the  injury.  1\,  C.  t§  St.  Louis 
lid.  Co.  vs.  Campbell,  80  111.,  443 ;  Kellogg  vs.  C.  d;  JV.  W.  lid. 
Co.,  26  Wis.,  223;  Kesee  vs.  C.  &  N.  W.,  30  la.,  78;  Cooleyon 
Torts,   661.     Contra— \Y\vAYton  on  Neg.,  S  868-870. 

Reasonable  Care  Required   to   Prevent   Spread   of   Fire. — It  is  the 

duty  of  a  railroad  company  to  take  all  reasonaMe  precautions  to 
prevent  the  spread  of  fire  from  its  locouK^tives.  And  while 
property  owners  adjoining  take  the  risk  of  injuries  unavoidably 
produced  by  fire  used  for  generating  steam,  yet,  for  any  neg- 
ligence in  the  use  of  it,  the  company  will  be  liable. 

Proof  of  the  destruction  of  property,  by  fire  escaping  from  a 
locomotive,  raises  a  prima  facie  case  of  negligence,  which  the 
defendant  must  rebut,  by  showing  the  absence  of  negligence,  by 
a  iirepondcrance  of  evidence,  or  that"  the  plaintiff's  own  fault  or 
negligence  contributed  to  the  injury.  Coale  vs.  Hannibal,  etc., 
R.  B.  Co.,  60  Mo.,  227. 

If  the  jury  believe,  from  the  evidence,  that  plaintiff's  prop- 
erty was  injured  by  fire  escaping  from  defendant's  engine,  while 
j'tassing  along  the  railroad,  as  charged  in  plaintiff's  declaration, 
then  this  makes  a  prima  facie  case  of  negligence  against  the 
defendant ;  and  it  is  not  enough  to  rebut  this  prima  facie  case 
to  show  that  the  eno;ine  was  orio-inallv  constructed  with  the  best 
and  most  approved  appliances  and  improvements  to  prevent 
the  escape  of  fire.  The  law  imposes  upon  the  company  and  its 
employes  the  duty  of  keeping  a  vigilant,  careful  watch  to  see 
that  tlie  engine  is  kept  in  proper  repair,  so  as  not  to  be  un- 
necessarily dangerous  to  property  in  the  vicinity  of  the  road; 
and  unless  the  defendant  has  shown,  by  a  prepoiulerance  of 
evidence,  that  the  engine  in  question  was  in  such  good  repair 
and  condition  at  the  time  of  the  injury  complained  of,  or  that 
;ill  reasonable  precautions  had  been  taken  to  have  it  in  such  re- 
jiair  and  condition,  then  tlie  defendant  has  not  rebutted  such 
prima  ficie  case  made  against  it;  provided  the  jury  believe, 
from  the  evidence,  that  the  jtlaintiff's  own  fault  or  negligence 
did  not  eontri1)Utc  to  the  injury.  C.  dj  A.  lid.  Co.  vs.  Quain- 
tance,  58  111.,  381). 


IN    CIVIL    ACTIONS  277 

Must  Provide  Most  Approved  Apparatus  to  Prevent  Escape  of  Fire.— 

The  jury  are  instructed,  that  raihoad  companies  are  required  by 
law  to  keep  constantly  in  use  the  most  approved  machinery  and 
apparatus  to  prevent  the  escape  of  fire  from  their  engines,  to 
the  injury  of  property  along  their  lines,  so  far  as  this  can  be 
done  by  the  exercise  of  all  reasonable  care,  skill  and  vigilance. 
T.,  P.  cfe  W.  Pul.  Co.  vs.  Pindar,  53  111.,  447. 

The  law  does  not  require  a  railroad  company  to  provide  and 
use  the  very  best  known  appliances  that  mechanical  skill  and 
ingenuity  have  been  able  to  devise  and  construct  to  prevent  the 
escape  of  sparks  from  its  locomotives,  but  they  are  required  to 
use  all  reasonable  means  to  that  end,  and  where  a  new  improve- 
ment of  such  appliances  has  been  made,  or  a  new  invention 
introduced,  which  has  been  tested  and  generally  approved  as 
better  than  that  it  is  using,  it  is  required  to  adopt  and  use  the 
better  appliances.  Toledo  W.  &  W.  Rd.  Co.  vs.  Com.,  71  111., 
493. 

The  court  instructs  the  jury,  that  no  matter  what  mechanical 
appliances  were  on  the  smoke  stack,  or  engine,  to  prevent  the 
escape  of  fire,  if  the  jury  believe,  from  the  evidence,  that  the 
fire  got  out  through  the  negligence  of  the  defendant's  engineer 
or  fireman;  for  in  such  case  the  defendant  would  be  liable,  and 
the  jury  should  find  the  issues  for  the  plaintiff;  provided,  the 
jury  further  find,  from  the  evidence,  that  the  plaintiff's  own 
negligence  did  not  contribute  to  the  spread  of  the  fire. 

If  the  jury  believe,  from  the  evidence,  that  at  the  time  in 
question  the  fire  escaped  from  defendant's  engine,  through  the 
negligence  of  its  servants  and  employes,  and  was  thereby  com- 
municated to  the  fence  and  fields  of  the  plaintiff;  and  further, 
that  the  plaintiff's  own  negligence  in  no  manner  contributed  to 
the  starting  or  spread  of  the  fire,  then  the  jury  should  find  for 
the  plaintiff,  and  assess  his  damages  at  such  an  amount  as  the 
evidence  shows  the  plaintiff  has  sustained  by  reason  of  the  fire. 

If  the  jury  believe  from  the  evidence,  that  the  fire  in  question 
originated  from  defects  in  the  construction  of  defendant's  en- 
gine, which  might  have  been  remedied  or  prevented  by  the 
exercise  of  reasonable  care  and  skill,  then  the  defendant  is  liable 
for  all  the  damage  caused  by  such  fire,  so  far  as  the  same  has 


278  IXSTRUCTIOXS 

l)oen  proved,  if  any  has  been  proved;  ])r()\id('d,  the  jury  further 
l)elit've,  from  thi>  evidenee,  that  tlie  ])laiutiff"s  own  fauh  or  iieg- 
ligeiiee  in  iid  inannei- citntrihuted  to  the  lighting  or  spreading  of 
such  lire. 

If  the  jurv  believe,  from  the  evidence,  that  the  defendant's 
servants,  in  charge  of  the  engine,  did  not  exercise  reasonable 
care  and  caution  in  the  running  and  management  of  the  said 
engine,  and  that  the  tire  in  question  was  caused  by  their  failure 
so  to  do,  then  the  defendant  is  liable  for  all  the  damage,  if  any, 
sustained  by  the  plaintiff,  and  occasioned  by  said  fire;  jirovided, 
the  jury  fui-ther  believe,  from  the  evidence,  that  the  plaintiffs 
own  fault  or  negligence  in  no  maimer  contributed,  to  the  light- 
ing or  spreading  of  said  fire. 

Dry  WtHMls  and  Grass. — If  the  jury  believe,  from  the  evidence, 
that  the  defendant,  negligently  and  carelessly,  allowed  dry  grass, 
weeds,  and  otlier  combustible  matei'ial,  to  accumulate  on  its 
right  of  way  adjoining  j^laintiff's  premises,  so  as  to  mmecessarily 
increase  the  hazard  from  fire,  and  that  by  reason  of  such  accu- 
mulation of  combustible  material,  the  fire  was  kindled,  and 
communicated  to  the  fence  and  field  of  the  plaintiff;  and  fur- 
ther, that  the  plaintiff's  own  negligence  in  no  manner  contrib- 
uted to  the  kindling  or  the  spreading  of  the  fire,  then  the  jury 
should  find  for  the  plaintiff"  tlu^  amount  of  damages,  if  any, 
which  are  proved  to  have  resulted  from  said  fire.  And  in  such 
case,  it  makes  no  difference  whether  the  best  appliances  to  pre- 
vent the  escape  of  fire  were  or  were  not  nsed  on  the  engine 
from  which  the  fire  escaped,  if  the  jury  believe,  from  the  evi- 
dence, that  the  fire  did  escape  from  defendant's  engine.  Flijnn 
vs.  San  Francisco  Rd.  Co.,  40  Cal.,  14;  Martin  vs.  W.  U.  lid. 
Co.,  23  Wis.,  437;  Hewey  vs.  Nourse,  54  Me.,  256;  IngersoU  vs. 
Stonl^ridge,  etc.,  Rd.  Co.,  8  Allen,  438;  I.  C.  Rd.  Co.  vs.  ])^unn, 
51  111.,  78;  Wharton  on  Neg.,  §  873. 

If  the  jury  believe,  from  the  evidence,  that  any  one  or  more 
of  the  fires  which  are  complained  of  by  the  plaintiff  in  this 
case,  were  caused  by,  or  originated  from,  defects  in  the  con- 
struction of  the  defendant's  engine,  which  might  have  been 
remedied  by  the  exercise  of  i'east)iuible   and  ordinary  care  and 


IN    CIVIL    ACTIONS.  279 

skill,  or  from  the  carelessness  of  the  defendant's  servants  in 
charge  of  the  engine,  and  that  the  plaintiff  was  damaged  thereby 
as  charged  in  the  declaration,  and  that  the  plaintiff  was  guilty 
of  no  negligence  which  contribnted  to  the  injury,  then  the  jury 
should  find  the  issues  for  the  plaintiff,  and  assess  his  damages  at 
such  a  sura  as  they  believe,  from  the  evidence,  he  has  sustained 
from  such  careless  or  negligent  acts. 

Degi-ee  of  Care  Required  of  Land  Owner. — The  court  instructs  the 
jury,  that  the  owner  of  land  adjoining  a  railroad  track  is  as 
much  bound  to  keep  his  land  fi-ee  from  unusual  and  dangerous 
accumulations  of  combustible  matter  as  a  railroad  company  is 
its  right  of  way.  And  if  the  owner  or  occupant  j^ermits  an  un- 
usual and  dangerous  accumulation  of  dead  grass,  dry  leaves,  or 
other  combustible  material  to  accumulate  on  his  land  next  to 
the  company's  right  of  way,  and  a  fire  is  ignited  on  the  right  of 
way,  and  is  thence  communicated  to  the  fields  adjoining,  by 
means  of  such  unusual  and  dangerous  accumulations  of  com- 
bustible material,  then  the  negligence  of  the  owner  wnll  he  held 
to  have  contributed  to  the  loss  and  injury,  and  in  such  a  case 
the  owner  of  the  property  injured  cannot  recover  for  such  in- 
jury, unless  the  jury  believe,  fi'om  the  evidence,  that  his  neg- 
ligence was  but  slight,  and  the  negligence  of  the  railroad  com- 
pany was  gross,  as  explained  in  these  instructions.  O.  di  iT.  W. 
vs.  8imo7ison,  25  111.,  504;  Ohio  c&  M.  Rd.  Co.  vs.  Shanefeet. 
47  111.,  497. 

The  court  instructs  the  jury,  as  a  matter  of  law,  that  it  is  not 
negligence  on  the  part  of  the  owner,  or  occupant,  of  property 
injured  by  fire  escaping  from  an  engine  passing  along  a  raili-oad, 
that  he  has  used  the  property  in  the  manner,  or  permitted  the  same 
to  be  used,  or  remain  in  the  condition  in  which  it  would  have  been 
used  or  remained,  had  no  railroad  passed  through  or  near  it.  Flynn 
vs.  San  Francisco  c&  San  Jose  Rd.  Co.,  40  Cal.,  14;  Kdlogg 
vs.  C.  di  N.  W.  Rd.  Co.,  26  Wis.,  223. 

The  court  instructs  the  jury,  that  the  defendant  was  not  bound 
to  furnish  the  very  best  or  most  improved  kind  of  machinery  or 
apparatus  to  prevent  the  escape  of  fire  from  its  engine ;  and  if 
the  jury  believe,  from  the  evidence,  that  the  engine,  etc.,  con- 


280  INSTRUCTIONS 

iiected  with  tlio  same  were  reasonably  safe,  and  sucli  as  are 
ordinarily  used  for  the  }»urpose  for  which  these  were  intended, 
and  tlial  the  defendant  was  not  otherwise  iruihy  of  negligence 
then  the  defendant  would  not  he  liahle  in  this  ease. 

Ahhough  the  jury  may  believe,  from  the  evidence,  that  an 
iin[)rovenuMit  has  been  iua(h^  and  patented  upon  engines  similar 
to  the  one  in  (question,  or  npon  the  apparatus  used  in  connection 
therewith,  for  preventing  the  escape  of  th-e,  yet,  the  defendant 
was  not,  on  that  account,  bound  to  purchase  or  use  such  im- 
provement; the  defendant  was  only  under  obligation  to  use 
reasonable  and  (jrdinary  care  in  providing  suitable  and  safe 
machinery,  and  to  provide  such  as  was  reasonably  safe.  Whar- 
ton on  Neg.,  §  635,  822 ;  Camp  Point  M'f'g.  Co.  vs.  Ballon, 
n  111.,  417. 

Reasonable  Care  and  Dilig-ence  only  Refiulrcd  by  the  Company. — The 

(•ourt  instructs  the  jury,  that  railroad  companies  are  only  bound 
to  exercise  reasonable  diligence  and  care  to  prevent  fire  or 
S]^arks  from  escaping  from  their  locomotives,  while  running  on 
thcii-  roads,  and  in  keeping  their  track  or  right  of  way  free  and 
clear  from  condjustible  material,  so  as  to  prevent  injury  by  tij-e 
to  farms  or  property  along  the  lines  of  their  roads;  and,  in  this 
connection,  reasonable  care  and  diligence  is  such  care  and  dil- 
igence as  a  careful,  prudent  and  skillful  man  would  observe, 
under  like  circumstances,  to  prevent  injury  to  his  own  property, 
equally  exposed;  and  if  the  jury  believe,  from  the  evidence, 
that  the  defendant  in  this  case,  did  exennse  all  such  reason- 
able care,  diligence  and  skill  to  prevent  injury,  by  a  tire,  to  the 
property  of  the  plaintiff,  that  is  all  the  law  required,  and  the 
defendant  is  not  guilty  of  negligence. 

Although  the  jury  may  believe,  from  the  evidence,  that  the 
fire  in  question  originated  on  defendant's  right  of  way,  by  reason 
of  fire  escaping  from  one  of  its  engines,  still,  if  they  further 
believe,  from  the  evidence,  that  such  engine  was  properly  con- 
structed, and  had  all  the  most  approved  appliances  and  inven- 
tions for  preventing  the  escape  of  fire,  and  that  the  defendant 
exercised  all  reasonable  care,  diligence  and  watchiuhiess  to 
keep  the  same  in  repair;   and    further,  that  the  defendant  used 


IN    CIVIL    ACTIONS.  2S1 

all  reasonable  care  and  diligence  to  prevent  dry  weeds  and  grass, 
and  other  combustible  materials,  from  accumulating  on  and  near 
its  right  of  way  where  the  iire  originated,  and  also  that  defend- 
ant's servants  used  all  such  care  and  diligence,  both  in  running 
and  numaging  the  engine,  and  in  keeping  the  track  clear  to 
prevent  tires,  as  prudent  and  careful  men  are  accustomed  to  use 
under  like  circumstances,  then  the  jury  should  find  the  defend- 
ant not  guilty. 

Though  the  jury  may  believe,  from  the  evidence,  that  the 
plaintiff's  timber  and  grass  were  injured  by  reason  of  fire 
escaj)ing  from  defendant's  engine,  as  charged  in  the  declara- 
tion, still,  the  defendant  is  not  liable  therefor,  if  the  jury 
further  believe,  from  the  evidence,  that  the  engine  in  question 
and  its  appliances  for  preventing  the  escape  of  fire,  were  of 
the  most  approved  construction,  and  were  then  in  good  condi- 
tion and  repair,  as  regards  the  escape  of  fire;  and  provided,  the 
jury  further  believe,  from  the  evidence,  that  the  defendant,  its 
agents  and  servants  were  not  guilty  of  any  neglect  of  reasonable 
care  in  reference  to  the  lighting  or  spread  of  said  fire. 

HIGHWAY    CROSSINGS. 

Must  be  put  in  Safe  Condition. — By  the  laws  of  this  state,  every 
corporation  owning  or  operating  a  railroad  in  this  state,  is  re- 
quired to  construct  reasonably  safe  crossings  at  all  points  where 
it  intersects  a  public  highway;  and  it  is  liable  for  all  injuries 
resulting  from  neglect  of  this  duty,  if  the  party  injured  is  guilty 
of  no  negligence  contributing  to  such  injury.  Farley  vs.  The 
a,  R.  I.  etc.,  Rd.  Co.,  42  la.,  234. 

Reasonable  €are  Required  at  Hiarlnray  Crossings. — The  jury  are 
instructed,  that  although  a  person  may  be  improperly  or  unlaw- 
fully upon  a  railroad  track,  that  fact  alone  will  not  discharge 
the  company  or  its  employes  from  the  observance  of  reasonable 
care ;  and  if  such  a  person  is  run  over  by  the  train,  and  killed 
or  injured,  the  company  will  be  responsible,  if  its  employes 
conld  have  avoided  the  accident  by  the  exercise  of  reasonable 
and  ordinary  care  and  watchfulness.  Isabelws,.  Hannibal^  etc.^ 
Rd.  Co.,  60  Mo.,  475. 


:>82  INSTRUCTIONS 

Signals  to  be  Given  at  Road  Crossings. — Tlie  court  instruots  the 
jurv,  that,  hv  the  hiwv.  of  this  state,  every  raib-oad  couipaiiy  is 
re(iuired  to  have  a  bell  of  at  least  (30)  pounds  wei^-ht  and  a  steam 
whistle  placed  and  kept  on  each  locomotive,  and  to  cause  the 
same  to  be  rung  or  whistled  at  the  distance  of  at  least  {eighty) 
rods  from  tlic  place  where  the  railroad  crosses  a  public  highway, 
and  to  keep  the  same  ringing  or  whistling  until  the  highway  is 
reached. 

If  the  jury  believe,  from  tlie  evidence,  tluit  the  defendant's 
agents  or  servants  in  charge  of  the  engine  in  (piestion,  omitted 
to  ring  a  bell  or  sound  a  whistle  continuously  for  the  distance 
of  {eighty)  rods  before  reaching  the  highway  crossing,  such  omis- 
sion constitutes  a  prima  facie  case  of  negligence  on  the  part 
of  the  defendant;  and  if  the  jury  further  believe,  from  the  evi- 
dence, that  the  plaintiff  was  struck  and  injured  at  the  railroad 
crossing  in  question, as  charged  in  the  declaration,  in  consequence 
of  the  omission  to  ring  the  bell  or  sound  the  whistle,  while  he 
was  himself  exercising  all  reasonable  care  and  caution,  in  that 
behalf,  then  the  defendant  is  liable  to  the  plaintiff  for  the  loss 
and  damage  sustained  by  him,  by  reason  of  such  injury,  if  any 
such  loss  or  damage  has  been  ])rovcd. 

Rights  and  Liabilities  of  Railroad  Companies  and  Travelers  are  Eqnal 
and  Mntnal. — The  court  instructs  the  jury,  that  railroad  com- 
panies, under  their  charters,  have  the  same  rights  to  use  that 
poi'tion  of  the  public  highway  over  which  their  track  passes  as 
the  public  have  to  use  the  same  highway.  Their  rights  and 
those  of  the  public,  as  to  the  use  of  the  highway  at  such  point 
of  intersection,  are  mutual  and  reciprocal;  and,  in  the  exercise 
of  such  rights,  both  the  company  and  those  using  the  higliway 
must  have  due  regard  for  the  safety  of  others,  and  use  every 
reasonable  effort  to  avoid  injury  to  others.  Ind.  i&  St.  Louis 
Rd.  Co.  vs.  Stahles,  62  III,  313 ;  Sherra.  &  Red.  on  Neg.,  §  481 ; 
Penn.  Rd.  Co.  vs.  Ileileman,  49  Penn.  St.,  GO;  Cleveland,  etc., 
ltd.  Co.  vs.  Terry,  8  Ohio  St.,  570. 

The  jury  are  instructed,  that  if  a  railroad  crosses  a  connnon 
road  on  the  same  level,  those  traveling  on  either  liave  a  legal 
right  to  pass  over  the  })oint  of  crossing,  and  to  re(piire  reasona- 


IN    CIVIL    ACTIONS.  2S3 

ble  care  and  caution  of  those  traveling  on  the  other  road  to 
avoid  a  collision ;  that  while  a  passing  train,  from  its  force  and 
momentum,  will  have  the  preference  in  crossing  first,  yet  those 
in  charge  of  it  are  bound  to  give  reasonable  warning,  so  that  a 
person  about  to  cross  with  a  team  and  wagon  may  stop  and 
allow  the  train  to  pass,  and  such  warning  must  be  reasonable 
and  timely,  so  far  as  the  circumstances  will  reasonably  admit  of. 
C.  B.  i&  Q.  Rd.  Co.  vs.  Lee,  87  111.,  454. 

If  the  jury  believe,  from  the  evidence,  that  the  injury  com- 
plained of  was  occasioned  by  a  collision  between  the  team  and 
wagon  of  tiie  plaintiff  and  a  locomotive  engine  of  the  defendant, 
on  a  public  road,  at  a  place  where  such  road  crossed  the  railroad 
of  the  defendant,  and  that  the  plaintiff  used  ordinary  care  and 
caution  to  avoid  a  collision,  and  that  the  collision  was  owing  to 
the  negligent,  careless  and  unskillful  manner  in  which  the  serv- 
ants of  the  defendant  managed  the  locomotive  and  train  of 
cars  attached,  as  charged  in  tlie  declaration,  then  the  jury  should 
find  a  verdict  for  the  plaintiff. 

The  court  further  instructs  the  jury,  that  if  they  believe,  from 
the  evidence,  that  the  engineer  or  fireman  on  the  locomotive 
which  struck  the  wagon  of  the  deceased,  and  caused  his  death — 
if  they  believe,  from  the  evidence,  his  death  was  so  caused — could, 
by  the  exercise  of  reasonable  care  and  watchfulness,  have  seen 
the  deceased  in  time  to  have  stopped  said  engine,  and  avoided 
the  injury,  without  danger  to  themselves  or  train,  then  the  railroad 
company  is  liable  for  the  want  of  such  care  and  watchfulness, 
and  the  injury  occasioned  thereby;  provided,  the  jury  further 
believe,  from  the  evidence,  that  thd  deceased  was,  at  the  time, 
exercising  all  reasonable  care  and  caution  to  avoid  the  injury. 
Chi.  (&  Alton  Ed.  Co.  vs.  Murray,  62  111.,  326. 

Company  Must  not  Suffer  Tall  Weeds  or  Brush  to  Obstruct  the  View  of 
the  Track. — The  court  instructs  the  jury,  that  it  is  negligence  in 
a  railroad  company  to  permit  or  suffer  brush  or  tall  weeds  to 
grow  upon  its  right  of  way,  so  as  materially  to  obstruct  the  view 
of  the  track  or  approaching  trains  by  persons  about  to  cross  the 
track;  and,  in  this  case,  if  the  jury  believe,  from  the  evidence, 
that  the  defendant  permitted  and  suffered  brush  and  tall  weeds 


284:  INSTRUCTIONS 

to  grow  upon  its  right  of  way,  so  as  to  obstruct  materially  the 
view  of  the  traek  and  of  approaching  trains  by  persons  about 
to  cross  the  railroad  on  the  crossing  in  question,  and  that  but  for 
such  obstruction  the  injury  in  (piestion  would  not  have  haj)- 
pened,  then  the  company  is  liable,  in  this  case,  unh^ss  the  jui-y 
further  believe,  from  the  evidence,  that  the  plaintifPs  own  neg- 
ligence directly  contributed  to  tlie  injury,  Wharti)n  on  Xeg., 
§  386;  O'Mara  vs.  Hudson  River  Rd.  Co.,  38  N.  Y.,  445; 
Artz  vs.  C,  etc.,  Rd.  Co.,  34  la.,  153;  Lid.,  etc.,  Rd.  Co.  vs. 
Keeley,  23  Ind.,  133;  Tahor  vs.  Mo.  V.  Rd.  Co.,  46  Mo.,  353; 
/.  dc  St.  Louis  vs.  Smith,  78  111.,  112. 

If  the  jury  believe,  from  the  evidence,  that  the  plaintiff  was 
free  from  negligence,  on  his  part,  in  attempting  to  cross  the 
track  of  the  railroad,  and  that  the  defendant's  servants  in  charge 
of  the  engine  were  gnilty  of  negligence,  either  in  running  over 
the  crossing  in  question  at  a  greater  speed  than  was  usual,  and 
than  was  reasonably  safe  to  persons  about  to  cross  tlie  track,  or 
in  not  ringing  the  bell  or  sounding  the  wliistle  continuously  for 
the  distance  of  {eighty)  rods  before  reaching  the  crossing,  and 
that  by  reason  of  such  negligence  the  phxintiff  or  his  proi)erty 
was  injured,  and  the  plaintiff  thereby  damaged,  then  the  jury 
should  find  the  issues  for  the  plaintiff. 

Care  Required  of  Travelers. — The  jury  are  instructed,  as  a  matter 
of  law,  that  both  the  plaintiff  {or  the  deceased)  and  the  railway 
company  had  an  equal  right  to  cross  the  street  at  the  point 
where  the  accident  happened,  and  that  the  law  imposes  upon 
both  parties  the  duty  of  using  reasonable  and  prudent  precau- 
tions to  avoid  accident  and  danger;  and,  while  it  was  incumbent 
upon  the  railway  company,  in  running  its  train  on  the  occasion 
referred  to,  to  give  the  required  signal  l)y  ringing  the  bell  or 
sounding  the  whistle  {eighty)  rods  before  reaching  the  crossing,  it 
was  also  the  duty  of  the  plaintiff  {or  deceased)  to  look  out  for 
the  a}iproach  of  the  train,  and  to  observe  all  reas()nal)le  })recau- 
tions  before  attempting  to  cross  the  track. 

Every  person  is  bound  to  know  that  a  railroad  crossing  is  a 
dangerous  place,  and  he  is  guilty  of  neglect  unless  he  approaches 
it  as  if  it  were  dangerous.     And   if  the  jui-y  Ijclieve,  from  the 


IN    CIVIL    ACTIONS.  235 

evidence,  that  the  plaintiff  {or  the  decerned),  as  he  approached 
the  raih-oad  track,  did  not  look  or  listen  to  ascertain  if  a  train 
was  conjing,  and  observe  all  reasonable  precautions  to  avoid 
danger,  but,  on  the  contrary,  drove  directly  on  to  the  track,  where 
the  accident  happened,  without  taking  any  steps  to  ascertain  if  a 
train  was  aj)proaching,  then  he  was  guilty  of  such  negligence  as 
precludes  a  recovery  in  this  case,  unless  the  jury  believe,  from 
the  evidence,  that  the  servants  of  the  railway  company,  upon  such 
occasion,  were  guilty  of  gross  negligence,  as  explained  in  these 
instructions.  Lake  Shore  Rd.  Go.  vs.  Miller,  25  Mich.,  274;  C. 
c6  N.  W.  Ed.  Co.  vs.  Hatch,  79  111.,  137;  Dcvvis  vs.  iV".  T.  Cent., 
47  N.  Y.,  400 ;  Allyn  vs.  Railroad  105  Mass.,  77 ;  Belief ontaine 
Rd.  Co.  vs.  Hunter,  33  Ind.,  353 ;  Penn.  Rd.  Co.  vs.  Beale,  73 
Penn.  St.,  504. 

A  person  about  to  cross  the  track  of  a  i-ailroad,  upon  a  public 
hicrhway,  is  bound  to  exercise  all  reasonable  care  and  caution 
to  avoid  injury  upon  the  crossing.  In  his  approach  to  the  cross- 
ing, it  is  incumbent  upon  him  to  exercise  care  and  caution  by 
looking  and  listening  for  any  train  that  may  be  approaching,  so 
as  to  avoid  a  collision;  otherwise  he  cannot  recover  for  an  injury 
so  received,  unless  it  appears  that  the  injury  was  inflicted  wilfully 
or  wantonly  {or  through  gross  negligence).  Heurne  vs.  South- 
ern, etc.,  Rd.  Co.,  50  Cal.,  482;  Toledo,  etc.,  Rl.  Co.  vs.  Shuck- 
man,  50  Ind.,  42;  Haines  vs.  III.  Cent.  Rd.  Co.,  41  Iowa,  227. 

The  court  instructs  the  jury,  as  a  matter  of  law,  that  it  is  the 
duty  of  a  person  approaching  the  crossing  of  a  railroad,  with 
a  wagon  and  team,  along  a  highway,  to  listen  and  to  look  both 
ways  along  the  railroad  before  going  upon  it.  If,  from  a  rise 
in  the  ground  or  other  obstructions,  or  if,  by  reason  of  a  defect 
of  his  sense  of  sight  or  hearing  he  cannot  determine  with  cer- 
tainty, whether  or  not  a  train  of  cars  is  approaching  without 
stopping,  and  if  necessary,  going  in  advance  of  his  team  to 
examine,  it  is  his  duty  to  do  so.  If,  in  such  case,  he  goes  upon 
the  track  without  taking  such  precaution,  he  does  so  at  his  own 
peril,  and  cannot  recover  i£  injury  results.  C,  B.  <&  Q.  Rd.  Co. 
vs.  Lee,  87  111.,  454. 

Cai-e  3Iast  be  Proportioned  to  Known  Danger. — If  the  jury  believe, 
from  the  evidence,  that  where  the  public  highway  crossed  the 


286  INSTRUCTIONS 

railroad  track,  and  wliore  the  accident  happened,  wa?^  a  difficult 
place  to  cross  with  a  loaded  team,  uiid  that  the  said  A.  15.  was 
acquainted  with  the  place  and  the  ditliculty  of  crossing-,  then  he 
was  hound  to  use  reasonahle  care  and  caution  to  avoid  injury, 
and  that  tlie  degree  of  care  and  caution  recjuii-ed  of  him  was 
such  as  would  have  l)een  reas()nal)ly  proportioiuite  to  tlie  known 
difficulty  and  danger  in  crossing. 

Contributory  Negligence— Gross  Negligence. — The  jury  are  in- 
structed, that  if  they  l)elieve  from  the  evidence,  that  the  said 
A.  B.  was  guilty  of  negligence,  which  materially  (•ontril)uted  to 
the  accident,  by  driving  upon  the  track  of  the  raih-oad  without 
first  looking  and  listening  to  see  if  a  train  was  approaching, 
tlicn  the  defendant  cannot  be  found  guilty  in  this  case,  unless 
the  jury  believe,  from  the  evidence,  that  the  defendant's  servants 
were  guilty  of  gross  negligence,  which  caused  the  accident. 
And  the  jury  are  instructed,  that  in  this  connection  gross  negli- 
gence means  a  wilful  act  or  omission,  or  one  which  shows  a 
reckless  disregard  of  life  or  property. 

The  court  further  instructs  the  jnry,  that  while  a  traveler  on 
the  highway  is  not  required  to  leave  his  wagon,  or  to  use  any 
other  unusual  means  to  discover  an  approaching  train,  he  can- 
not voluntarily  close  his  eyes  to  danger,  or  needlessly  expose 
himself  to  it,  and  then  claim  compensation  for  an  injury  thus 
received.  And  if  the  jury  believe,  from  the  evidence,  that  the 
said  A.  B.,  if  he  had  looked,  could  have  seen  the  approaching 
train,  for  a  distance  of,  etc.,  before  the  train  reached  the  cross- 
ing, and  that  either  he  diil  not  look,  or  else  })aid  no  attention  to 
the  train,  but  went  upon  the  track  while  the  train  was  approach- 
ing, and  so  near  to  the  crossin<j  as  to  cause  the  accident,  then  lu; 
was  guilty  of  gross  negligence,  and  cannot  recover  in  tl^is  suit. 
Boc^ford,  etc.,  Rd.  Co.  vs.  Byam,  80  111.,  528;  Benton  vs. 
Cent.  Rd.  Co.,  42  la.,  192-;  Cleveland,  etc.,  Rd.  Co.  vs.  Elliott, 
28  Ohio  St.,  340;  Fletcher  vs.  Atlantic,  etc.,  Rd.  Co.,  C4  Mo., 
484. 

If  the  jury  believe,  from  the  evidence,  that  the  defendants 
employes  sounded  the  whistle,  or  rung  the  bell  of  the  engiiH; 
for  {eifjhtij)  rods  before  reaching  the  crossing,  and  uscij  all  such 
ordinary  care  and   diligence,  as  is  generally  used   by  carctul 


IN    CIVIL    ACTIONS.  287 

and  skillful  engineers,  brakemeii,  and  employes  of  railroad  compa- 
nies under  like  circumstances ;  and  if  the  j  ury  further  believe,  from 
the  evidence,  that  the  said  A.  B.  was  sitting  on  his  wagon,  with 
his  back  turned  in  the  direction  of  the  approaching  train,  so  as 
to  preveut  his  seeing  it,  and  that  he  could  have  seen  the  train  in 
time  to  avoid  tlie  injury  if  he  had  turned  and  looked  in  the 
direction  of  the  approaching  train,  then  the  jury  must  find  the 
defendant  not  guilty. 

The  court  instructs  the  jury,  as  a  matter  of  law,  that  it  was  the 
duty  of  the  deceased,  in  approaching  the  railroad  crossing,  to 
have  exercised  that  degree  of  care  and  prudence,  for  his  per- 
sonal safety,  which  an  ordinarily  prudent  man  would  do;  and  if 
the  jury  believe,  from  the  evidence,  that  the  deceased,  by  the 
exercise  of  that  degree  of  care  and  prudence,  could  have 
discovered  the  approaching  train  in  time  to  stop  his  team  and 
avoid  the  collision,  then  the  plaintiff  cannot  recover,  nnless  the 
jury  find,  from  the  evidence,  that  the  injury  was  caused  by  the 
wilful  conduct  of  the  person  in  charge  of  the  engine,  or  by  con- 
duct so  utterly  recklesi;  as  to  show  an  utter  disregard  for  the  life 
of  the  deceased.     (7.,  B.  &  Q.  Rd.  Co.  vs.  Lee,  68  111.,  576. 

Railroad   Companies   Only   Required  to   Exercise  Reasonable  Care.— 

The  defendant's  servants  in  charge  of  the  engine  which  struck 
the  deceased  had  a  right  to  assume  that  he  was  rational,  and 
would  exercise  reasonable  care  and  caution  to  keep  himself  out 
of  danger  until  they  saw  something  in  his  conduct  which  was 
inconsistent  with  such  assumption.  And  if  the  jury  believe, 
from  the  evidence,  that  when  the  persons  in  charge  of  the 
engine  first  came  in  sight  of  the  deceased,  he  was  so  far  removed 
from  the  track  as  to  be  free  from  danger  of  collision,  then  they 
had  a  right  to  assume  that  he  would  remain  at  such  safe  distance, 
nnless  there  was  something  in  the  circumstances  calculated  to 
rebut  such  presumption,  or  until  he  manifested  a  purpose  to 
place  himself  in  a  dangerous  position.  Chicago,  li.  I.  <&  P. 
Ed.  Co.  vs.  Austin,  69  111.,  426. 

Negligence  perse  in  Traveler. — The  court  instructs  the  jury,  as  a 
matter  of  law,  that  it  is  not  the  exercise  of  ordinary  care  and 
prudence  for  a  j)erson  to  drive  with  a  team  directly  on   to  a 


288  INSTKUCTICiTS 

railroad  crossing,  without  making  an  effort,  by  stopping  or  listen- 
ing, or  otherwise,  to  ascertain  whether  a  train  is  approaching,  or 
whether  it  is  safe  to  drive  on  to  the  track  with  his  team. 

Damage  Must  be  the  Result  of  the  Negligence  Charged. — The  court  in- 
structs the  jury,  that  tlie  neglect  to  sound  the  whistle  or  ring  the 
bell  of  an  engine  is  not  of  itself  such  negligence  as  will  justify 
a  recovery  for  damages,  to  person  or  property,  injured  upon  the 
track.  To  entitle  the  plaintiff  to  recover  for  such  injury,  it 
must  appear,  from  the  evidence,  that  the  injury  was  the  result 
of  such  omission  to  ring  the  bell  or  sound  the  whistle.  Ind.  c& 
St.  L.  Rd.  Co.  vs.  Blackman,  63  111.,  117. 

The  jury  are  instructed,  that  it  is  not  enough  to  create  a 
liability  for  injuries  cansed  by  a  railroad  train,  to  prove  the  bell 
was  not  rung,  or  the  whistle  sounded.  The  jury  must  fnrther 
believe, from  the  facts  and  circumstances  proved, that  the  accident 
was  caused  by  reason  of  such  neglect. 

The  jury  are  instructed,  that  although  they  may  believe,  from 
the  evidence,  that  the  (coio)  in  question  was  killed  by  the 
defendant's  locomotive,  and  that  there  was  a  failure  to  ring  the 
bell  or  blow  the  whistle,  for  a  distance  of  (ei(//if//)  rods  before 
reaching  the  crossing;  still,  if  the  jury  further  believe, from  the 
evidence,  that  there  was  no  connection  l)etween  the  failure  to 
rintr  the  bell,  or  blow  the  whistle,  and  the  killing  of  the  (coio), 
then  the  jury  should  find  the  defendant  not  guilty,  unless  they 
find,  from  the  evidence,  that  the  injury  was  occasioned  by  some 
neo-lio-ence  or  misconduct,  other  than  the  failure  to  ring  the  bell 
or  sound  the  whistle. 

The  jury  are  instructed,  that  whether  the  failure  to  ring  the 
bell,  or  sound  the  whistle,  on  approaching  the  highway,  by  the 
train  in  question,  was,  or  was  not,  the  cause  of  the  injury  com- 
plained of,  is  a  question  of  fact,  to  be  determined  by  the  jury, 
from  a  consideration  of  all  the  evidence  in  the  case.  Illinois 
Cent.  Put.  Co.  vs.  Benton,  CO  111.,  17-1. 

lujury  to  Stock  at  Crossing. — The  jury  arc  instructed,  as  a  mat- 
ter of  law,  that  it  would  be  gross  negligence,  in  pei'sons  in 
cftarge  of  an  engine,  not  U)  see  and  observe  stock  if  they  are  on 


IN    CIVIL    ACTIONS.  289 

or  near  a  railroad  crossing,  at  least  {forty)  rods  before  reaching 
that  point,  if  there  was  nothing  in  the  way  to  prevent  them  seeing, 
if  they  had  looked. 

And  in  this  case,  if  the  jnry  believe,  from  the  evidence,  that 
the  plaintiff's  horse  was  injnred  by  the  defendant's  engine,  while 
the  horse  was  on  a  highway  crossing,  and  that  the  persons  in 
charge  of  the  engine  could  have  seen  the  horse  on  the  track,  or 
in  dangerous  proximity  to  it,  in  season  to  have  stopped  the  cars 
and  prevented  the  injury,  and  did  not  see  him,  or  seeing  him,  in 
season  to  have  avoided  the  injury,  did  not  do  so,  this  would  be 
gross  negligence,  for  which  the  company  would  be  liable,  unless 
the  jury  believe,  from  the  evidence,  that  the  plaintiff  was  him- 
self guilty  of  negligence,  which  contributed  directly  and 
materially  to  the  injury.  C.  B.  t§  Q.  Rd.  Co.  vs.  Cauffman^ 
SS'Ill.,  424;  Wharton  on  Neg.,  §  397;  Parker  vs.  Railroad, 
34  la.,  399. 

The  court  instructs  the  jury,  that  in  a  suit  against  a  railroad 
company,  for  injuries  inllicted  at  a  highway  crossing,  if  it 
appears,  from  the  evidence,  that  no  bell  was  rung,  or  whistle 
sounded,  for  the  distance  of  {eighty)  rods  before  reaching  the 
crossing,  and  also  that  the  company  was  guilty  of  {other  negli- 
gence), which  may  have  caused  the  injury;  and  if  it  is  doubtful 
whether  the  injury  was  caused  by  the  failure  to  ring  the  bell  or 
sound  the  whistle,  or  by  {such  other  negligence)^  or  by  both  com- 
bined, then  the  company  will  be  liable  for  the  injury;  provided, 
the  jury  believe,  from  the  evidence,  that  the  injury  resulted 
from  either  or  both  of  said  causes,  and  that  the  plaintiff  himself 
was  free  from  fault  or  neo-lio-ence. 

[See  Part  1.,  Sees.  19  and  20.] 

Neglect  to  l^ing  the  Bell,  Etc.,  Prima  Facie  Evidence  of  Negligence.— 

The  jury  are  instructed,  that  in  a  suit  against  a  railroad  com- 
pany for  killing  stock  at  a  road  crossing,  an  omission,  on  the 
part  of  the  company,  to  ring  a  bell  or  sound  a  whistle  contin- 
uously for  a  distance  of  at  least  {eighty)  rods  before  reaching  the 
crossing,  if  proved,  constitutes  a  prima  facie  case  of  negligence 
against  the  company.  Illinois  Cent.  Rd.  Co.  vs.  Oillis^  68 
Ilk,  317. 

19 


290  INSTRUCTIONS 

Must  Exercise  Reasonable  Care  aiul  Watdifiihiess  to  Avoiil  Injuring 
Stock. — If  the  jury  believe,  from  the  evidence,  that  the  {cow}  in 
question  was  killed  by  a  passing  train  of  cars  on  the  defendant's 
road,  and  that  before  she  was  killed  she  was  in  plain  view  of 
the  eni^ine  driver  and  fireiuan  in  charge  of  the  engine,  and  that 
slie  was  seen,  or  could  have  been  seen,  l)y  them  by  the  use  of 
ordinary  care  and  attention,  in  time  to  have  slackened  the  speed 
of  the  train  and  avoided  the  accident,  and  that  no  efforts  were 
made  by  them  in  that  direction,  this  was  such  negligence  as 
renders  the  company  liable;  provided,  the  juiy  find,  from  the 
evidence,  that  plaintiff's  own  negligence  did  not  contribute  to 
the  injury. 

The  court  instructs  the  jury,  as  a  matter  of  hiw,  that  a  rail- 
road company  is  liable  for  stock  killed  upon  its  track,  where 
such  killing  results  from  the  want  of  ordinary  care  and  caution 
in  the  running  of  its  trains,  and  the  plaintiff's  own  negligence 
does  not  materially  contribute  to  the  injury.  To  render  the 
company  liable  in  such  cases,  it  is  not  necessary  that  the  killing 
should  bo  wantonly  or  wilfully  done  by  its  servants  or  employes. 
RocJcford,  R.  I.  i&  St.  L.  Rd.  Co.  vs.  Raffert}/,  73  III,  58. 

The  court  instructs  the  juiy,  that  if  they  believe,  from  tl)c 
evidence,  that  the  pei-sons  in  charge  of  the  engine  and  train  of 
cars  in  question,  by  ordinary  care,  skill  and  prudence,  could 
have  seen  the  animals,  or  that  they  did  see  them  in  season,  so 
that  by  the  use  of  ordinary  care  and  skill,  and  without  danger 
to  the  train,  they  might  have  stopped  the  train  before  striking 
the  animals,  and  tlnis  avoided  the  injury,  and  did  not  do  so,  this 
would  be  such  negligence  as  would  render  the  defendant  liul)le 
for  the  injury  and  damage  sustained  by  the  plaintiff;  j^rovidod, 
the  jury  believe,  from  the  evidence, that  the  animals  were  injured, 
and  that  plaintiff  thereby  sustained  damage,  in  manner  and  form 
as  charged  in  the  declaration;  and  also  that  plaintiffs  own  fault 
or  negligence  did  not  contribute  to  the  injury.  T.,  P.  tC'  W.  Rd. 
Co.,  vs.  Braij,  57  III.,  51-L 

Si)ee<l   Through   Cities   and   Villaj^es  —  Limited   by   (h'dinance. — The 

jurv  are  instructed,  that  when  a  railroad  company  runs  its  trains 
through  a  city,  incoriX)rated  town  or  village,  at  a  greater  rate  of 
speed  than  is  permitted  by  the  ordinance  of  the  city,  town  or 


IN    CIVIL    ACTIONS.  291 

village,  and  stock  is  killed  by  suck  train  while  so  running,  the 
killing  will  be  presumed  to  have  been  done  through  th(3  neg- 
ligence of  the  company.  J'.,  P.  c6  W.  R.  R.  Co.  vs.  Deacon,  03 
111.,  91. 

The  court  instructs  the  jury,  that  it  is  gross  negligence  on  the 
part  of  a  railroad  company  to  run  its  trains  through  a  city,  in- 
corporated town  or  village,  at  a  rate  of  speed  prohibited  by  law; 
and  if  a  railroad  company  does  so  run  its  trains,  and  thereby 
causes  the  death  of  a  person,  who  is  himself  in  the  exercise  of 
reasonable  care  and  caution  to  avoid  injury,  the  company  will 
be  liable.      C.  S  A.  Rd.  Co.,  vs.  Becker,  %i  Ilk,  483. 

It  is  the  duty  of  a  railroad  company,  whose  road  runs  through 
a  city  or  village,  to  run  its  trains  while  in  the  city  or  village 
at  such  a  rate  of  speed  as  to  have  them  under  control,  so  as  to  be 
able  to  avoid  injury  to  persons  or  property,  though  there  is  no 
ordinance  of  such  city  or  village  on  the  subject;  and  if  it  fail 
to  do  so,  it  will  be  guilty  of  negligence.  Chi.  &  Alton  Rd.  Co., 
vs.  Engle,  84  Ilk,  397. 

The  court  instructs  the  j  ury,  that,  by  the  laws  of  this  state,  if 
a  railroad  corporation,  by  its  agents  or  servants,  runs  an  engine, 
or  train  of  cars,  in  or  through  the  limits  of  any  incorporated 
city,  town  or  village,  at  a  greater  rate  of  speed  than  is  per- 
mitted by  the  ordinance  of  such  city,  town  or  village,  then  the 
corporation  is  liable  for  all  damage  done  to  the  person  or  prop- 
erty of  any  person  injured  by  such  engine  or  train  of  cars. 

Speed  when  not  Limiteil  by  Ordmance. — If  the  jury  believe,  from 
the  evidence,  that  the  {colt),  when  injured,  was  straying  upon  the 
depot  grounds  and  track  of  the  defendant,  then  it  is  not  material 
at  what  rate  of  speed  the  cars  were  running,  if  within  reason- 
able limits,  and  the  defendant's  servants  were  not  guilty  of  neg- 
lio-ence  in  any  other  respect.  The  defendants  are  not  bound  to 
run  their  cars  with  reference  to  the  safety  of  stock  straying  upon 
their  track.  It  had  a  right  to  run  its  trains  at  any  rate  of  speed 
consistent  with  the  safety  of  persons  and  property  rightfully 
on  its  cars,  or  right  of  way. 

Rules  as  to  Children  —  Contributory  Negligence. — That  a  party  seek- 
ing to  recover  damaijes  caused  bv  negliacence  or  misconduct  of 


292  INSTRUCTIONS 

another,  if  old  ciiougli  to  exercise  reasonable  care  and  caution, 
must  show,  by  a  preponderance  of  evidence,  that  his  own  neg- 
ligence  or  misconduct  did  not  concur  with  the  negligence  of  the 
party  charged  in  producing  the  injury  complained  of;  and  if  the 
party  injured  is  not  old  enough  to  exercise  reasonable  care  and 
caution,  then  it  must  appear,  from  the  evidence,  that  the  neg- 
lio-ence  or  misconduct  of  the  persons  whose  care  and  circum- 
spection,  under  the  circumstances,  should  have  been  exercised, 
did  not  concur  with  the  negligence  of  the  i)arty  charged,  in 
producing  the  injury  complained  of;  or  else,  in  neither  case, 
would  the  complaining  party  be  entitled  to  recover,  unless  it 
further  appears,  from  the  evidence,  that  such  concurring  neg- 
ligence was  slight,  and  the  negligence  of  the  party  charged  was 
gross,  as  explained  in  these  instructions.  Citij  of  Chicago  vs. 
\ajor,  18  111.,  349. 

Note.— Upon  the  question,  whether  the  contributory  negligence  of  a 
parent  or  guardian  can  be  imputed  to  a  child  of  tender  years,  so  as  to  pre- 
vent a  recovery  for  injuries  inflicted  upon  the  child,  the  authorities  are  not 
agreed.     See  Wharton  on  Neg.,  §  310,  and  cases  there  referred  to. 

If  the  jury  believe,  from  the  evidence,  that  the  deceased,  at 
the  time  of  the  injury,  from  his  age,  rccpiircd  the  care  and  over- 
sight of  some  older  person,  in  order  to  insure  his  personal  safety; 
and,  further,  that  at  the  time  of  the  injury  reasonable  care 
and  oversight  were  not  exercised  by  the  person  having  the 
charge  and  control  of  the  child,  and  that  such  want  of  reasona- 
ble care  contributed  directly  to  the  injury,  then  the  plaintiff 
cannot  recover,  unless  the  jury  further  believe,  from  the  evi- 
dence, that  such  contributory  negligence  was  but  slight,  and 
the  negligence  of  the  defendant  was  gross,  as  explained  in  these 
instructions. 

As  pertinent  to  the  question  of  reasonable  care,  regarding  the 
child,  the  jury  may  consider  whether  it  appears,  from  the  evi- 
dence, that  he  was  of  such  tender  years  as  to  need,  for  his  per- 
sonal safety,  the  care  and  oversight  of  some  older  person;  and, 
if  the  jury  so  find,  from  the  evidence,  then  they  should  inquire 
whether  it  appcnrs,  from  the  evidence,  that  at  the  time  of  the 
accident  some  older  person  was  exercising  such  care  and  over- 
sio-ht  over  the  person  of  the  cliild,  as  ordinarily  judicious  and 


IN    CIVIL    ACTIONS.  293 

careful  persons,  having  the  care  of  children  of  like  age,  usually 
exercise  over  them.  Evansville^  etc.,  Rd.  Co.  vs.  Wolf.,  59  Ind.,  89, 

The  jury  are  instructed,  that  the  rule  as  to  contributive  negli- 
gence of  a  child,  is  that  it  is  required  to  exercise  only  that 
degree  of  care  which  a  person  of  that  age  would  naturally  and 
ordinarily  use,  in  the  same  situation  and  under  the  same  cir- 
cumstances. St.  Louis.,  etc.,  Rd.  Co.  vs.  Valirhis.,  56  Ind.,  511 ; 
McMillan  vs.  Burlington,  etc.,  Rd.  Co.,  46  la.,  231;  Cleveland, 
etc.,  Rd.  Co.  vs.  Manson,  31  Ohio  St.,  451;  Chicago,  etc.,  Rd. 
Co.  vs.  Murray,  Yl  111.,  601;  Baltimore,  etc.,  Rd.  Co.  vs. 
McDonnell,  43  Md.,  534;  Gov.  St.  Rd.  Co.  vs.  Ilanlon,  53  Ala., 
70;  Isabel  vs.  Hannibal,  etc.,  Rd.  Co.,  60  Mo.,  475. 

Where  the  parents  of  an  infant  or  a  child,  too  young  to  be 
allowed  on  the  public  streets  alone,  are  unable  to  give  him  their 
personal  care,  but  do  entrust  him  to  the  care  and  supervision  of 
a  suitable  person,  the  negligence  of  the  latter  cannot  be  imputed 
to  the  parents  nor  to  the  child.  Walters  vs.  C,  R.  I.  &  P.  Rd. 
Co.,  41  la.,  71. 

The  jury  are  instructed,  that  in  determining  the  relative 
degrees  of  care,  or  want  of  care,  manifested  by  the  parties,  at 
the  time  of  tlie  injury,  the  age  and  discretion  of  the  party  in- 
jured are  proper  subjects  of  inquiry  for  the  jury.  The  law 
does  not  require  that  a  child  shall  exercise  the  same  degree  of 
care  and  caution  as  a  person  of  mature  years,  but  only  such 
care  and  caution  as  a  person  of  his  age  and  discretion  would 
naturally  and  ordinarily  use.     Kerr  vs.  Forgue,  54  111.,  482. 

If  the  jury  believe,  from  the  evidence,  that  the  deceased,  at 
the  time  of  his  death,  was  between  {five  and  six)  years  of  age, 
and  that  he  went  upon  the  railroad  track  of  the  defendant,  and 
that  the  engineer  in  charge  of  the  engine  in  question,  through 
the  want  of  ordinary  and  reasonable  care,  skill  or  attention,  ran 
the  engine  against  the  deceased  and  killed  him,  in  manner  and 
form  as  charged  in  the  plaintiff's  declaration,  then  the  j)laintiff 
has  a  right  to  recover  in  this  case;  provided,  the  jury  believe, 
from  the  evidence,  that  the  said  deceased,  by  reason  of  his 
tender  years,  was  incapable  of  exercising  any  more  care  or  dis- 
cretion than  he  did  manifest  at  the  time  of  the  accident. 
[See  Note,  p.  289.1 


294  ixsTurcTioxs 

blaster  anil  Sen-ant— Master  Liable  to  Servant,  When. — The  jiii-y  arc 
instructed,  that  a  master  or  employer  is  bound  to  use  reasonable 
care,  skill  and  judgment  to  furnish  suitable  machinery  and  im- 
plements, properly  constructed,  and  ordinarily  skillful  and  trust- 
^V()rrlly  agents  or  workmen;  and  if  the  employer  does  not  use 
such  care,  skill  and  judgment,  and  injury  results  therefrom  to 
an  employe,  the  employer  will  be  liable  for  such  injury. 

That  while  a  master  is  not  an  insurer  that  the  sei-vants  he 
employs  are  skillful  and  prudent,  or  that  the  workmanship  (U* 
materials  employed  in  his  business  are  absolutely  proper  or  suita- 
ble, yet  he  is  bound  to  use  all  reasonable  care  and  skill  in  their 
selection,  and  construction,  so  far  as  regards  the  safety  of  the 
persons  in  his  employ.  Sherm.  tfe  Red.  on  Neg.,  §  80-92;  Nones 
vs.  Smith,  28  Vt.,  59;  Buzzell  vs.  Laco)iia,  etc,^  Co.^  48  Me., 
113 ;  McGatrich  vs.  Wason,  4  Ohio  St.,  5GC;  Lewis  vs.  St.  LouiSy 
etc.,  Rd.  Co.,  59  Mo.,  490;  BaUer  vs.  Bo7)erts,  44:  Cal.,  187; 
Ackerson  vs.  Dewiison,  117  Mass.,  407;  Stnckle/idorfxs,.  Rosen- 
thal, 30  AVis.,  674;  Richardson  vs.  Cooper,  88  111.,  270. 

The  court  instructs  the  jury,  that  it  is  the  duty  of  a  railroad 
company,  towards  those  who  are  in  its  employ,  to  have  its  road 
bridges,  and  other  appurtenances,  constructed  of  good  and  sound 
material,  so  far  as  this  is  reasonably  practicable,  having  in  view 
the  business  done  upon  the  road.  In  their  construction  they 
should  equal  those  of  the  average  roads  deling  the  same  class  of 
business,  so  far  as  relates  to  the  safety  of  its  employes,  and  the 
utmost  care  and  vigilance  which  is  reasonably  practicable  must 
be  bestowed  by  the  company  to  keep  them  in  safe  condition. 

Duty  Towards  Employes.— The  jury  are  instructed  that  it  is  the  duty 
of  a  railway  company,  as  employer,  to  use  all  reasonable  care 
and  foresight  to  provide  safe  structures,  competent  employes, 
and  all  appliances  necessary  to  the  safety  of  the  employed,  and 
to  adopt  such  rules  and  regulations  for  running  its  trains  a^^  will 
avoid  injury  to  its  employes,  so  far  as  this  can  reasonably  1)0 
done;  and  having  adopted  such  rules,  to  use  all  reas()nal)le 
efforts  to  conform  to  them,  or  the  company  will  bo  responsible 
for  conserpiences  resulting  from  a  departure  from  them.  Chi- 
cago,  etc.,  Rd.  Co.  vs.  Taylor,  GO  111.,  4G1. 


IN    CIVIL    ACTIONS.  295 

A  railroad  company  is  bound  to  use  all  reasonable  precau- 
tions for  the  safety  of  its  employes,  and  should  furnish  such 
machinery,  and  keep  it  in  such  condition  as  would  be  least  likely 
to  cause  injuries,  so  far  as  this  can  reasonably  be  done.  It  is 
not,  however,  bound  to  the  exercise  of  extraordinary  care,  and 
is  required  to  furnish  such  appliances  only  as  are  reasonably 
well  calculated  to  insure  the  safety  of  its  employes. 

The  jury  are  further  instructed,  that  a  railroad  company,  as  re- 
gards its  employes,  must  use  all  ordinary  care  and  supervision 
to  keep  its  roadway  in  a  good  and  safe  condition ;  and  if  its  agents, 
charged  with  the  duty  of  inspecting  and  repairing  its  track, 
have  notice  of  defects  in  it,  or  by  reasonable  care  and  diligence 
could  have  learned  them,  and  omit  to  make  repairs,  in  conse- 
quence of  which  an  employe  is  injured,  while  he  is  himself 
using  reasonable  care  and  prudence,  then  there  is  a  want  of  such 
care  on  the  part  of  the  company  as  the  law  requires,  and  the 
company  would  be  liable  for  such  injuries.  Loclte  vs.  Sioux 
Citfj,  etc.,  Ed.  Co.,  46  la.,  109;  Lake  Shore,  etc.,  Ed.  Co.  vs. 
Fhzpati'lclc,  31  Ohio  St.,  479. 

The  court  instructs  the  jury,  that  a  railroad  company  is  bound 
to  use  all  reasonable  care  and  caution  to  provide  suitable  and 
safe  material  and  skillful  workmanship  in  the  construction  of  its 
road  and  appurtenances,  and  to  exercise  reasonable  care  and 
watchfulness,  to  keep  the  same  in  good  repair  and  safe  condition, 
and  if  the  company  do  not  do  so,  and  in  consequence  thereof  an 
injury  happens  to  one  of  its  servants  or  employes,  while  in  the 
exercise  of  reasonable  care  and  caution  himself,  the  company 
will  be  liable  for  the  injury  thus  sustained. 

The  jury  are  further  instructed,  that  a  railroad  company  must 
use  reasonable  care  and  caution  in  the  selection  of  its  rolling- 
stock,  and  in  the  employment  of  competent  persons  to  manage 
its  business,  so  that  no  unnecessary  risk  shall  be  incurred  by  any 
of  its  servants  in  the  discharge  of  their  duties;  and  if  the  com- 
pany does  not  do  so,  and  an  injury  happens  to  one  of  its  servants, 
by  reason  of  such  neglect,  the  company  will  be  liable  for  the 
injury  thus  sustained,  provided  the  person  injured  is  using 
reasonable  care  and  caution  to  avoid  the  injury. 

The  court  instructs  the  jury,  that  it  is  a  duty  the  law 
imposes  upon  railroad  companies  that  they  shall  do  everything 


296  INSTRUCTIONS 

tliiit  reasonably  (;an  1)C  doiu^  to  fiii'iiisli  safe  (^ars  to  its  employes, 
to  l)c'  ust'd  l)y  them  in  workiiiii;  on  the  railroad,  and  it  is  not  a 
dnty  that  can  be  delegated  to  its  olHeers  and  agents,  so  as  to  avoid 
liability  on  the  part  of  the  company. 

And  in  this  case,  if  the  jni-y  believe,  from  the  evidence,  that 
the  company,  through  the  negligence  and  want  of  reasonalde 
care  of  its  servants  and  agents,  neglected  and  failed  to  furnish  a 
safe  car  upon  the  occasion  in  cpicstion,  l>ut  did,  tln-ough  negli- 
gence and  want  of  reasonable  care  and  caution,  furnish  one  that 
was  out  of  repair,  as  charged  in  the  declaration,  and  that  by 
reason  of  such  defect  the  plaintiff  {or  the  deceased),  while  using 
ordinary  care,  and  in  the  discharge  of  his  duty,  was  injured  {or 
killed), then  the  jury  should  find  the  defendant  guilty;  provided, 
they  further  believe,  from  the  evidence,  that  the  i)laintiff  {or  the 
deceased)  did  not  know  of  sucli  defect,  and  could  not  have 
known  the  same,  by  the  use  of  reasonable  care  and  caution  on 
his  part.     Berea  S.  Co.  vs.  Kraft,  31  Ohio  St.,  287. 

Servant  Does  Not  Take  (lie  Risk  <»f  Daiiijers  Not  Incident  to  the  Business. 

—  The  (;ourt  instructs  the  jury,  that  whore  a  servant  is  injuixMl 
by  something  not  incident  to  his  employment,  but  by  a  tempo- 
rary peril,  to  which  he  is  exposed  by  the  negligent  act  of  his 
employer,  without  any  negligence  on  the  servant's  part,  he  is 
entitled  to  recover  damages,  from  the  employer,  on  account  of 
sucli  injury.  That  when  a  servant  is  employed  in  a  business, 
and  at  a  place  not  dangerous,  and  the  employer  negligently  and 
carelessly  creates  a  peril  at  the  place  where  the  servant  is  at 
work,  and  the  servant  is  injured  thereby,  then  the  servant  will 
be  entitled  to  recover  for  such  injury,  if  he  is  himself  without 
fault  contributing  to  such  injury.  AVharton  on  Neg.,  §  541); 
FairhanJcs  vs.  Ilaentzsche,  73  111.,  236. 

Servant  Not  Bound  to  Inquire,  Etc. — The  jury  are  instructed,  that 
an  employe  of  a  railroad  company,  assisting  in  running  its 
trains,  is  not  bound  to  know  or  in(|uirc  whether  the  road  has 
been  safely  and  iiroperly  constructed. 

There  is  an  implied  undertaking  on  the  part  of  the  company, 
with  its  employes,  that  all  tliat  can  reasonably  be  done  to  I'ender 
the  road  safe,  has  been  done.  C.  cfc  iV^.  W.  Rd.  Co.  vs.  Stocet 
45  111.,  l'J7. 


IN    CIVIL    ACTIONS.  297 

Negligence  of  the  Company  in  Employing  Servant. — The  jury  are  in- 
structed, as  a  matter  of  law,  that  if  a  servant  of  a  railroad  com- 
pany, while  liimself  using  reasonable  care  and  caution,  to  avoid 
injury,  be  injured  through  the  incompetency  and  unskillfulness 
of  a  fellow  servant,  or  in  consequence  of  defects  in  the 
machinery  or  track,  and  the  jury  believe,  from  the  evidence, 
that  the  company  was  guilty  of  a  want  of  ordinary  care  and 
attention  in  the  employment,  or  in  the  retention  of  such  fellow- 
servant,  or  in  the  construction  or  repair  of  its  machinery  or 
track,  tlie  company  will  be  liable  in  damages,  which  result  from 
such  negligence,  if  any  such  damage  is  proved. 

Reasonable  Care  Only  Required  For  SJifety  of  Employes. — As  respects 
the  duty  of  a  master  or  employer  towards  a  servant  or  employe, 
in  his  service,  the  court  instructs  the  jury,  as  a  matter  of  law, 
that  the  master,  or  employer,  is  not  bound  to  provide  machinery 
which  is  absolutely  safe.  The  law  imposes  on  the  master,  or 
employer,  only  the  obligation  to  use  reasonable  and  ordinary 
care,  skill  and  diligence,  in  procuring  and  furnishing  Suitable 
and  safe  machinery.  Wharton  on  Neg.,  §  205 ;  Wi'lgltt  vs.  The 
iV:  Y.  Cent.  Ed.  Co.,  25  K  Y.,  562;  Cooley  on  Torts,  557; 
Ladd  vs.  Ifeio  Bedford,  etc.,  Rd.  Co.,  119,  Mass.,  412;  Indian- 
apolis, etc.,  lid.  Co.  vs.  Love,  10  Ind.,  554;  Fort  Wayne,  etc., 
vs.  Gildersleeve,  33  Mich.,  137;  Camp  Point,  etc.,  Co.  vs. 
BaUou,  71  111.,  417. 

The  court  instructs  the  jury,  that  no  person,  or  corporation,  is 
responsible  for  injuries  to  an  employe,  occasioned  by  the  care- 
lessness, negligence,  or  unskillfulness  of  a  fellow-servant, 
engaged  in  the  same  line  of  service ;  provided,  the  employer  has 
taken  proper  care  and  caution  to  engage  proper  servants  to  per- 
form the  duties  assigned  to  them.  Nor  is  the  employer  liable 
for  injuries  thus  sustained,  if  the  person  injured  was,  while  en- 
gaged as  such  servant,  acquainted  with  the  character  of  such 
fellow- servant  for  capacity,  prudence  and  skill. 

The  rule  of  law  is,  that  when  a  person  engages  in  the  service 
of  another,  he  undertakes,  as  between  himself  and  his  employer, 
to  run  all  the  ordinary  risks  incident  to  such  service ;  and  this 
includes  the  risk  of  occasional  carelessness,  negligence,  or  un- 


298  INSTRUCTIONS 

skill f'iilii(s>  (Ml  the  p.art  of  his  fellow-servants  engaged  in  the 
same  line  of  duty  and  service;  provided,  the  employer  has  exer- 
cised reasonable  care  and  caution  to  engage  competent  and  careful 
persons  to  discharge  the  duties  assigned  to  them. 

Kiiiploye  Assimies  all  Ordinary  Risks. — The  juiy  aic  instructed, 
tliat  where  a  person  enters  into  the  service  of  a  railroad  com- 
pany, lie  thereby  nndertiikes  to  run  all  tlic  ordinary  risks 
incident  to  the  employment,  including  his  own  negligence  or 
nnskillfulness,  and  that  of  his  fellow-servants,  who  are  engaged 
in  the  same  line  of  duty,  provided  the  (;onipany  has  taken 
reasonable  care  and  precaution  to  engage  competent  servants  to 
discharge  the  duties  assigned  to  them.  7'.,  IK  <i;  W.  Rd.  Co. 
vs.  DurMn,  76  111.,  395. 

The  jury  are  instructed,  that  a  servant,  when  he  engages  in  a 
particular  employment,  is  presumed  to  do  so  with  a  knowledge 
of,  and  a  taking  of  the  risks  of  its  ordinaiy  hazards,  whether 
from  the  carelessness  of  fellow-servants  in  the  same  line  of  em- 
ployment, or  from  latent  defects  in  the  machinery  and  appli- 
ances used  in  the  business,  (^r  the  ordinary  dangers  in  the  use  of 
the  same. 

If  the  jnry  believe,  from  the  evidence,  that  the  plaintiff  (oy 
deceased)  was  engaged  in  the  employment  of  the  defendant 
"when  he  was  injured,  and  that  such  injury  was  received  while 
in  the  discharge  of  his  duty  as  sucli  employe;  and  if  the  jury 
further  believe,  from  the  evidence,  that  such  injury  was 
occasioned  either  bv  his  own  nej^-liijence,  carelessness,  or  want  of 
skill,  or  by  that  of  his  fellow-servants,  engaged  in  the  same  line 
of  duty  or  service,  as  explained  in  these  instructions,  then  the 
jury  should  find  for  the  defendant;  provided,  they  further 
believe,  from  the  evidence,  that  the  defendant  was  not  gnilty  of 
any  lack  of  care  or  pi-udcnce  in  selecting  or  retaining  such 
fellow-servants,  to  discliaige  the  duties  assigned  to  them. 

The  jury  are  instructed,  that  where  an  employment  is 
attended  with  danger,  a  servant  engaging  in  it  assumes  the  haz- 
ard of  the  ordinary  perils  which  are  incident  to  it;  and  if  he 
I'eceives  an  injui-y  from  an  accident,  which  is  an  oi-dinary  })eril 
of  the  service  undertak-en  hy  him,  lie  cannot  recover  damages 
for  such  injury.       T.,  W.  cb    W.  lid.  Co.  vs.  Black,  88    111.,  112. 


IN    CIVIL    ACTIONS.  299 

Servant  Having  Knowledge  of  Defects. — The  jury  are  furtlier  in- 
structed, as  a  matter  of  law,  that  an  employe  of  a  railroad 
company  cannot  recover  from  the  comj)any  for  an  injury 
suffered,  in  the  course  of  the  business  about  which  he  is 
employed,  from  defective  machinery  used  therein,  or  from  the 
dangei'ous  condition  of  the  track,  after  he  has  knowledge  of 
such  defect,  or  dangerous  condition,  and  continues  his  work 
without  objection.  C.  c6  A.  Rd.  Co.  vs.  Manroe,  85  111.,  25; 
Fort  Wayne,  etc.,  Rd.  Co.  vs.  Gildersleeve,  33  Mich.,  133; 
Johnson  vs.  Western,  etc.,  Rd.  Oo.,  55  Ga.,  133;  Way  vs.  III. 
Cent.  Rd.  Co.,  40  la.,  341. 

The  jury  are  instructed,  as  a  matter  of  law,  that  it  is  the  duty 
of  one  in  the  employ  of  a  railroad  company,  to  see  that  the 
machinery  which  he  uses  is  in  repair,  so  far  as  this  can  be  do7ie 
by  the  exercise  of  such  care  and  prudence  as  would  be  exercised 
by  a  prudent  and  careful  man,  engaged  in  the  s^tme  business; 
and  when  such  machinery  is  found  to  be  out  of  repair,  to  report 
the  fact  to  the  company ;  and  if  he  does  not  do  so,  it  is  negli- 
gence on  his  part,  and  the  company  will  not  be  liable  for  any 
injury  sustained  by  him,  occasioned  by  such  machinery  being 
out  of  repair.     T.,  W.  &  W.  Rd.  Co.  vs.  Eddy,  72  111.,  138. 

The  jury  are  instructed,  that  if  a  servant  discovers  that 
machinery,  used  in  the  line  of  his  employment,  is  out  of  order, 
and  dangerous  to  himself,  and  he  does  not  stop  using  the  same, 
and  give  notice  thereof  to  his  employer,  or  his  agents,  and  wait 
until  it  is  put  in  proper  condition,  but  continues  to  use  it,  and  is 
injured  by  reason  of  its  being  in  such  unsafe  condition,  then  the 
employer  will  not  be  liable  for  the  injury,  if  he  is  otherwise 
without  fault.     Richardson  vs.  Cooper,  88  111.,  270. 

Servant  must  use  Reasonable  Care  and  Caution. — It  is  the  duty  of 
the  servants  of  the  company  to  use  all  reasonable  care  and  dil- 
igence to  see  that  the  machinery  used  by  them  in  the  perform- 
ance of  their  duties,  is  in  fit  condition  for  use,  and  report  the 
defects,  if  any,  to  the  company,  and  if  they  do  not  do  so,  it  will 
be  negligence  on  their  part.  C.  cfi  iV^  W.  Rd.  Co.  vs.  Jackson, 
55  111.,  492. 

The  jury  are  instructed,  that  although  machinery  furnished 
by  a  railroad  company,  for  the  use  of  its  employes,  may  be  un- 


300  INSTRUCTIONS 

sale,  yet  if  an  employe,  knowing  the  character  of  the  machinery, 
continues  to  use  it,  he  is  bound  to  exercise  care  and  caution. 
reasonably  commensurate  with  the  apparent  danger,  and  if  he  fails 
to  do  so,  and  is  injured,  his  negligence  will  preclude  a  recovery 
against  the  company,  on  account  of  such  injury.  T.,  W.  c5  IF- 
Bd.  Co.  vs.  Aslibury,  84  III.,  429. 

Neglicrence  of  Fellow-Servant. — The  jury  are  instructed,  that  tlie 
rule  of  law,  that  an  action  will  not  lie  by  a  servant  against  his 
master  or  employer,  for  an  injury  sustained  through  the  neg- 
ligence or  default  of  a  fellow-servant,  applies  only  to  cases 
where  the  injuries  complained  of  occur  without  the  fault  of  the 
employer,  either  in  the  act  which  caused  the  injury,  or  in  the 
employment  of  the  person  who  caused  it. 

That  while  it  is  true  that  a  common  employer  is  not  respon- 
sible to  a  servant  for  an  injury  caused  by  the  negligence  of  his 
fellow-servant,  engaged  in  the  same  line  of  employment,  yet,  it 
is  the  duty  of  the  employer  to  use  all  reasonable  care,  caution 
and  prudence  to  provide  safe  structures,  competent  employes, 
and  all  appliances  necessary  to  the  safety  of  the  employed,  and 
to  adopt  all  reasonable  rules  and  regulations  to  avoid  injuries  to 
the  employed,  and,  having  adopted  such  rules,  to  conform  to 
them,  or  be  responsible  for  consecpiences  resulting  from  a  de- 
parture therefrom.  Chicago  &  iH.  ^Y.  Rd.  Co.  vs.  Taylor,  09 
III,  401. 

The  jury  are  instructed,  that  the  master  does  not  warrant  the 
competency  of  his  servants  to  the  other  servants.  The  extent  of 
the  master's  undertaking  is,  that  he  will  exercise  reasonable  care 
in  the  selection  of  an  employe,  and  if  his  incompetency  is  dis- 
covered, will  dismiss  him  from  service.  The  master  will  be 
lialile,  where  the  injury  is  imputable  to  his  negligence,  in  the 
selection  of  the  servant,  or  in  retaining  him  after  his  incom- 
petency is  known.  Coluriibus,  C.  ct'  I.  Cent.  lid.  Co.  vs.  T/'oesch, 
68  lU.,  545. 

Fellow-Serrants  Defliied. — That  when  the  employment  of  a  per- 
son working  for  a  railroad  company  is  in  a  different  department 
of  labor  from  other  servants,  and  when  he  is  not  associated  with 


IN    CIVIL    ACTIONS. 


301 


such  other  servants  in  the  performance  of  their  respective  du- 
ties, but  is  wholly  separated  and  disconnected  from  them,  in  the 
performance  of  his  duties,  then  the  railroad  company  is  liable 
for  the  negligence  of  such  other  servant,  if  proven,  and  it  results 
in  injury  to  the  person  so  employed,  without  his  fault. 

If  the  jury  believe,  from  the  evidence,  that  at  the  time  of  the 
accident  complained  of,  the  plaintiff  was  in  the  employ  of  the 
defendant,  as  brakeman  on  one  of  its  freight  trains,  and  that 
while  so  employed,  and  in  the  line  of  his  duty,  he  received  an 
injury,  resulting  from  a  defective  brake  on  one  of  defendant's 
cars,  and  that  there  were  other  persons  in  the  employ  of  the 
company  whose  duty  it  was  to  examine  the  cars,  and  see  that 
the  brakes  were  in  good  repair  and  safe  condition,  then  the 
court  instructs  the  jury,  as  a  matter  of  law,  that  the  plaintiff 
and  such  other  persons  were  not  fellow-servants  engaged  in  the 
same  grade  or  line  of  service,  within  the  meaning  of  the  law. 

If  the  jury  believe,  from  the  evidence,  that  at  the  time  of  the 
accident  in  question,  the  plaintiff  was  in  the  employ  of  the  de- 
fendant, as  fireman  on  one  of  its  locomotives,  and  that  while  so 
employed,  and  in  the  line  of  his  duty,  he  received  an  injury, 
resulting  from  the  negligence  or  want  of  ordinary  care  and  skill 
of  the  engineer  in  charge  of  the  same  locomotive,  then  the  court 
instructs  the  jury,  as  a  matter  of  law,  that  the  plaintiff  and  en- 
gineer were  fellow-servants,  engaged  in  the  same  grade  or  line 
of  service,  within  the  meaning  of  the  law,  and  the  defendant,  if 
otherwise  without  fault,  would  not  be  liable  for  such  injury. 
Valtez  vs.  0.  c&  If.  Rd.  Co.,  85  III,  500. 

Duty  to  make  Proper  Rules  for  Safety  of  Servant. — That  it  is  the 
duty  of  a  railway  company  to  make  all  reasonable  and  proper 
regulations  for  the  safety  of  its  employes.  And  this  being  an 
affirmative  fact,  it  devolves  upon  the  company  to  show  an  ob- 
servance of  the  duty  when  sued  by  a  servant  for  an  injury 
received  when  in  its  service,  and  negligence  is  shown.  Sherm. 
&  Eed.  on  IN'eg.,  §  93. 


303  INSTRUCTIONS 


NEGOTIABLE     INSTRUMENTS. 

Presumptions  in  Fsivor  of  the  Holder. — Tlio  court  instructs  the 
jury,  that  the  possession  of  a  note,  indorsed  in  Idank,  unuceora- 
panied  by  any  dechiration  or  other  evidence  in  regai'd  to  it,  is 
j^i'hiia  fiU'ie  evidence  that  the  hohler  is  tlie  owner  of  it;  that  he 
took  it  for  vahie  befoi-e  it  became  due,  and  in  the  reguhir  course 
of  business.  1  Pars,  on  Notes  and  Bills,  255;  Pettee  vs.  Prouf, 
3  Gray,  502;  Warren  vs.  Gilman,  15  Me.,  TO;  Dugan  vs.  U.  S., 
3  Wheat.,  172;  J\^ell>/  vs.  Ford,  4  la.,  140;  Goodman  vs.  Sim- 
onds,  20  How.,  343;  Cook  vs.  Helms,  5  Wis.,  107;  Farwell  vs. 
Mijers,  30  111.,  510;  Stoddard  vs.  Burton,  41  la.,  582. 

That  the  indorsee  of  a  promissory  note,  in  the  absence  of 
proof  to  the  contrary,  is  presumed  in  law  to  have  taken  it  in  due 
course  of  trade  before  maturity,  for  value,  and  in  good  faith. 

That  when  a  note  is  indorsed  without  date,  the  presumption 
of  law  is,  in  the  al)sence  of  proof  to  the  contrary,  that  it  was 
indorsed  before  it  became  due. 

That  when  the  assignment  of  a  promissory  note  is  without 
date,  the  law  raises  a  ju-esumption  that  the  transfer  was  made 
before  the  maturity  of  the  note,  and  to  rebut  this  presumption 
the  burden  of  proof  is  upon  the  person  alleging  that  the  note 
was  assigned  after  maturity.     Richards  vs.  Betzer,  53  111.,  4G0. 

Presumption  can  only  be  Overcome  by  Proof. — That  a  person  rpies- 
tioning  the  good  faith  of  the  assignment  of  a  note  in  the  hands 
of  an  assignee,  in  order  to  defeat  a  recovery,  must  prove,  by  a 
preponderance  of  evidence,  that  the  assignment  was  made  after 
the  maturity  of  the  n(^te,  or  that  it  was  not  made  for  value,  or 
that  the  transaction  M'as  for  some  fraudulent  purpose;  or  that 
the  assignee  took  the  note  with  notice  of  the  defense  interposed 
by  the  defendant.  1  Pars,  on  X.  &  B.,  255;  Cook  vs.  Helms, 
5  Wis.,  107;  Bepuy  vs.  Schuyler,  45  111.,  306. 

The  court  instructs  the  jury,  that  fhe  note  introduced  in  evi- 
dence is  sufficient  prima,  facie  evidence  to  entitle  the  plaintiif 
to  recover  the  full  amount  thereof,  principal  and  interest, 
accordiuir  to  the  terms  of  the  iiote,  less  the  credits  indorsed 
thereon. 


IN    CIVIL    ACTIONS.  803 

If  the  jury  believe,  from  the  evidence,  that  the  note  in  question 
was  assigned  and  indorsed  by  the  payee  thereof ,  to  tlie  phxintiff; 
and  if  the  jury  also  find  that  there  is  no  evidence  that  it  was 
assigned  after  maturity,  or  that  the  plaintiff  took  it  with  notice  of 
the  alleged  defense  thereto,  or  that  it  was  so  assigned  without  con- 
sideration, then  the  law  will  presume  that  it  was  indorsed  to 
plaintiff  before  it  was  due;  that  he  paid  a  valuable  considera- 
tion therefor,  and  that  he  had  no  notice  of  any  defense  to  the 
said  note. 

lunoceat  Parcliaser— Taken  as  Security. — Tlie  court  instructs  the 
jury,  that  the  indorsee  of  a  promissory  note  before  its  maturity, 
taking  it  as  security  for  a  preexisting  debt,  in  the  ordinary 
course  of  business,  and  without  any  express  agreement,  is 
deemed  a  holder  for  a  valuable  consideration,  and  he  will  hold 
the  note  free  from  defenses  on  the  part  of  the  maker,  of  which 
he  had  no  notice  at  the  time  of  taking  it.  1  Parsons  on  N".  tfe 
B.,  218;  Bowman  vs.  Millison,  58  111.,  36;  Carlisle  vs.  Wlshart, 
11  Ohio,  172;  Oatwaite  vs.  Porter,  13  Mich.,  533;  Stevens  vs. 
Campbell,  13  Wis.,  375.  Contra — Stalker  vs.  McDonald,  6 
IliU,  93;    Cook  vs.  Helms,  5  Wis.,  107. 

Note  Taken  in  Payment  or  Part  Payment,  Etc. — If  the  jury  believe, 
from  the  evidence,  that  before  the  alleged  transfer  of  the  note, 
the  said  A.  B.  i^payee)  was  indebted  to  the  plaintiff,  and  that  the 
said  note  was  assigned  to  the  plaintiff  by  the  said  A.  B.  in  {part) 
payment  of  such  an  indebtedness,  then  the  plaintiff  is  what  is 
known  in  law  as  an  innocent  purchaser  of  the  note;  provided, 
the  jury  further  believe,  from  the  evidence,  that  he  took  the 
note  in  good  faith  before  it  became  due,  and  without  any  notice 
of  the  alleged  defense  thereto. 

Assignee  With  Notice  from  an  Assignee  Without  Notice. — The  court 
instructs  the  jury,  that  if  a  note  is  assigned  before  maturity,  for 
value,  to  a  honaji'le  purchaser,  without  notice,  the  assignee  will 
be  protected  against  any  defense  by  the  maker;  and  a  subsequent 
purchaser  of  the  note  from  such  assignee,  even  with  notice,  will 
succeed  to  his  rights  in  the  same  condition  he  held  them.  A 
defense  to  the  note  having  been  once  cut  off  by  its  transfer  to 


304:  INSTRUCTIONS 

an  innocent  holder,  will  not  be  revived  by  a  subsequent  assign- 
ment to  a  person  with  notice  of  such  defense.  Woodioorth  vs. 
Iluntoon,  40  111.,  Voi. 

The  law  is,  that  the  holder,  for  value,  of  a  negotiable  note, 
mav  recover  on  tlie  note,  th(^ui;-h  he  was  fully  informed,  when 
he  received  it,  that  it  was  obtained  from  the  maker  by  fraud; 
provided,  such  holder  obtains  it  from  a  person  who  took  the 
note,  in  the  usual  course  of  business,  in  good  faith  and  for  value. 
Rileij  vs.  Shawacher,  50  Ind.,  592. 

Indorsement  in  IJlank. — That  a  note  is  said  to  be  indorsed  in 
blank  when  the  indorser's  name  is  written  on  the  back,  leaving 
a  blank  over  the  name  for  the  insertion  of  the  name  of  an 
indorsee,  or  pei-son  to  whom  it  is  indorsed.  And  when  the  in- 
dorsement remains  in  l)bink,  the  note  may  be  passed  from  per- 
son to  person  by  mere  delivery,  and  the  last  holder  has  the  right 
to  till  in  his  own  name  as  indorsee,  and  bring  suit  on  the  note 
in  his  own  name,  as  though  it  had  been  indorsed  directly  to  him 
in  the  first  instance.  2  Parsons  on  Xotes  and  Bills,  19,  20; 
Palmer  vs.  Mamhall,  00  111.,  289. 

Assignee  After  Matnrity. — That  an  assignee  of  a  promissory  note, 
who  takes  it  after  maturity,  is  supposed  to  have  notice  of  any 
defense  that  exists  against  it;  and  such  defense  may  be  made  as 
effectually  against  the  note  in  the  hands  of  such  assignee  as  if  the 
suit  had  been  brought  by  the  original  payee  of  the  note. 

Assi^ment  Without  Consideration. — The  jury  arc  instructed,  that 
when  a  promissory  note  is  assigned  without  any  consideration 
therefor,  the  assignee  takes  it  as  a  mere  volunteer,  and  holds  it 
subject  to  all  its  infirmities,  the  same  as  if  he  had  had  actual 
notice  of  them  at  the  time  of  the  assignment,  or  as  if  the  note 
had  been  assigned  1o  him  after  its  maturity.  1  Parsons  on 
Xotes  and  Bilk,  2(>2. 

Assignee  Before  Miitnrity  Without  Notice,  Etc. — Tne  court  instructs 
the  jury,  as  a  matter  of  law,  that  the  (consideration  of  a  nego- 
tiable note  cannot  l)e  impeached  in  the  hands  of  an  innocent 
purchaser,  for  value,  who  has  received  it  in  good  faith,  before 
it  became  due,  witliout  any  notice  of  such  defense. 


TN    CIVIL    ACTIONS.  805 

If  the  jury  believe,  from  the  evidence,  that  the  defendant 
made  the  note  in  question,  then,  under  the  issues  in  tins  case, 
the  defendant  assumes  the  burden  of  proving,  by  a  preponder- 
ance of  evidence,  not  only  that  the  consideration  of  the  note  has 
failed  in  part  {or  has  lo  holly  failed),  as  alleged  in  his  pleas,  but 
also  that  the  plaintiff  took  the  said  note  after  it  became  due,  or 
without  paying  any  consideration  therefor,  or  that  he  had  notice 
of  the  alleged  failure  of  consideration  at  the  time  he  purchased 
the  note,  if  it  appears,  from  the  evidence,  that  he  did  pur- 
chase it. 

Assignee  with  Notice  of  Suspicious  Facts. — The  court  instructs  the 
jury,  that  where  a  person  takes  an  assignment  of  a  promissory 
note  for  a  valuable  consideration,  before  due,  and  is  not  guilty 
of  bad  faith,  even  though  he  may  be  guilty  of  gross  negligence, 
he  will  hold  it  by  a  title  valid  against  all  the  world,  and  it  will 
not  be  subject  to  the  defense  of  a  failure  of  consideration  in  his 
hands. 

That  a  party  wh(-)  takes  commercial  paper,  by  indorsement, 
before  due,  without  knowledge  of  any  defects  of  title  or  defense 
to  it,  and  for  a  valuable  consideration,  will  take  a  good  title 
unaffected  by  any  defense  going  to  the  consideration.  Suspicion 
of  the  defect  of  title,  or  knowledge  of  circumstances  which 
would  excite  suspicion  in  the  mind  of  a  prudent  man,  will  not 
defeat  his  title,  or  let  in  a  defense  not  otherwise  admissible 
against  it  in  his  hands.  That  result  can  only  be  produced  by 
bad  faith  on  his  part.  Oomstock  vs.  Hannah,  76  111.,  531; 
Edwd.  on  B.  &  K,  318;  Goodman  vs.  Harvey,  4  A.  &  E.,  870; 
1  Pars,  on  N.  &  B.,  258;  Goodman  vs.  Simonds,  20  How., 
343-363. 

Although  the  assignee  of  a  note  may  have  reason  to  know,  or 
may  actually  know  when  he  buys  it,  for  what  the  note  was  given, 
that  fact  alone  will  not  make  him  chargeable  with  knowledge  of 
special  defenses  to  it;  and  in  this  case,  although  the  jury  may 
believe,  from  the  evidence,  that  the  plaintiff  knew  when  he 
purchased  the  note  that  it  was  given  for,  etc.,  yet,  if  the  jury 
further  believe,  from  the  evidence,  that  he  had  no  notice  of  the 
special  defense  now  set  up  by  the  defendant,  and  had  no  reason 

20 


306  INSTRUCTIONS 

to  suspect  it,  he  Avill  not  be  cluirgeable  witli  notice  of  the  same; 
nor  can  he  be  affected  with  such  defense  in  tliis  suit;  provided, 
the  evidence  shows  that  the  said  note  was  assigned  to  him  in 
good  faith,  for  a  vahiablc  consideration,  before  the  maturity  of 
the  note. 

Wlio  Deemed  a  Bona  Fide  Holder. — A  hohler  of  negotiable  paper, 
who  takes  it  belorc  maturity,  for  a  vahiablc  consideration,  in  the 
usual  course  of  business,  without  knowledge  of  facts  wliich  im- 
peach its  validity,  as  between  antecedent  parties,  is  deemed  a 
hona  fide  holder,  Crosbij  s%.  Tanner^  40  la.,  136;  Twitchell 
vs.  McMurtrie,  77  Penn.  St.,  383. 

In  order  to  defeat  a  promissory  note  in  the  hands  of  a  hona 
fide  holder,  it  is  not  enough  to  show  that  he  took  it  under  cir- 
cumstances calculated  to  excite  suspicion.  To  defeat  the  note 
in  his  hands  it  must  appear,  by  a  preponderance  of  evidence, 
that  he  was  guilty  of  a  want  of  honesty,  or  of  bad  faith  in 
acquiring  it.  Johnson  vs.  Way,  27  Ohio  St.,  374;  Shreei^es  vs. 
Allen,  79  111.,  553;  Hamilton  vs.  Marks,  63  Mo.,  167;  Moore- 
head  vs.  Gilmore,  77  Penn.  St.,  118. 

The  jury  are  instructed,  that  a  party  about  to  take  an  assign- 
ment of  a  promissory  note,  is  under  no  obligation  to  call  upon 
the  maker  and  make  inquiry  as  to  possible  defenses,  which  he 
may  have,  but  of  which  the  purchaser  has  no  notice,  either  from 
something  appearing  on  the  face  of  the  paper,  or  from  facts 
communicated  to  him  at  the  time.  Iloury  vs.  Eppinger,  34 
Mich.,  21);  Murray  vs.  Bechwith,  81  111.,  43. 

Assiernep  with  Knowledare. — If  the  jnry  believe,  from  the  evi- 
dence, that  the  jtlaintitf,  bofoi-e  ho  purchased  said  note,  knew, 
or,  as  an  ordiuai-il\'  pi-udciit  man,  liad  reason  to  Ix'licve,  from  cir- 
cumstances brouglit  to  his  knowledge,  before  he  purchased  it, 
that  the  defendant  had,  or  claimed  to  have,  a  defense  to  said 
note,  or  to  some  part  of  it,  then  the  plaintiff  is  not  an  innocent 
holder  of  said  note.  1  Pars,  on  X.  <Sz  B.,  258;  I'Mwd.  on  IJ.  ^^: 
Ts".,  320. 

If  the  jury  believe,  from  the  evidence,  tliat  the  ])hiintiff  is  not 
an  innocent  holder  of  said  note,  as  explained   in  these  instruc- 


IN    CIVIL    ACTIONS.  307' 

tions,  then  the  defendant  is  entitled  to  set  up  the  same  defenses 
to  it  that  he  could  have  set  up  if  suit  had  been  brought  by  the 
payee  of  said  note. 

GUARANTOR   OF    COLLECTION INDOESER    OR    ASSIGNOR,    UNDER    THE 

STATUTE    OF    ILLINOIS. 

Note. — The  liability  of  an  indorser  or  assignor  of  a  promissory  note, 
under  the  statutes  of  Illinois,  is  substantially  the  same  as  that  of  a  guar- 
antor of  collection  by  the  law  merchant,  except  perhaps  that  the  guarantor 
is  entitled  to  reasonable  notice  if  the  holder  fails  to  collect  from  the  maker. 
2  Pars,  on  N.  &  B.,  141;  Wolfe  vs.  Brown,  5  Ohio  St.,  304;  Day  vs.  Elmore, 
4  Wis.,  190;  Oillingham  vs.  Bourdinan,  29  Me.,  79;  Ransom  vs.  Sherwood, 
26  Conn.,  437;  Camden  vs.  Doremiis,  3  How.,  515;  Green  vs.  Thompson,  33 
la.,  293;  Judson  vs.  Gookins,  37  111.,  286. 

Liability  Fixed  by  Statute  —  Illinois. — The  j  ury  are  instructed,  that 
under  the  laws  of  this  state,  the  assignor  of  a  promissory  note  is 
liable  to  pay  the  same  to  the  assignee;  provided,  the  assignee 
bhall  have  used  due  diligence  to  collect  the  same  from  the 
maker,  by  the  institution  and  prosecution  of  a  suit  against  him; 
aud  if  the  jury  believe,  from  the  evidence,  that  the  institution 
of  such  suit  would  have  been  uuavailing  to  collect  the  note,  or 
any  part  of  it,  from  the  maker,  or  if  the  maker  had  absconded, 
resided  out  of,  or  had  left,  the  state  when  the  note  became  due, 
then  the  assignor  would  be  liable  without  the  institution  of  a 
suit,  the  same  as  if  due  diligence  by  suit  had  been  used  against 
the  maker.  Mason  vs.  Barton^  54  111.,  349;  Beattie  vs. 
Browne,  64  111.,  360. 

Intention  does  not  Govern. — The  jury  are  instructed,  that  it  is 
immaterial  in  this  case  what  idea  the  defendant  had  as  to  his 
liability  as  the  indorser  of  the  note;  such  liability  is  fixed  by 
law.  And  if  the  jury  believe,  from  the  evidence,  that  the  defend- 
ant sold  and  indorsed  the  note,  then  he  is  liable,  in  law,  as  the 
indorser,  whatever  may  have  been  his  intention  or  understanding 
at  the  time.     Ilawhinson  vs.  Olson,  48  111.,  277. 

Due  Diligence  Defined. — The  court  instructs  the  jury,  that  in 
order  to  hold  the  indorser  of  a  note  liable  on  his  indorsement,  it 
is  not  necessary  that  the  holder,  in  his   attempts  to  collect  the 


308  INSTRUCTIONS 

note  of  the  maker,  should  have  used  the  greatest  possible  degree 
of  diligence.  He  is  only  required  to  use  such  diligence  as  is  ordi- 
narily used  by  careful,  vigilant  and  prudent  men  in  the  conduct 
of  their  own  affairs.     2  Pars,  on  N.  &  B.,  l-il. 

If  the  jury  believe,  from  the  evidence,  that  the  plaintiff  insti- 
tuted a  suit  on  the  note  in  (piestion,  against  the  maker,  in  the 
circuit  court  of  the  county  in  which  the  maker  resided,  at  the 
first  term  of  said  court  after  the  note  became  due,  and  prose- 
cuted said  suit  to  final  judgment,  with  all  reasonable  diligence, 
and,  after  the  judgment  was  o1)tained,  with  all  reasonable  dil- 
igence caused  an  execution  to  issue  thereon,  and  placed  the 
same  in  the  hands  of  the  sheriff  of  said  county;  and  if  the  jury 
furHier  believe,  from  the  evidence,  that  the  sheriff,  at  no  time 
during  the  life  of  the  execution,  was  able  to  find  property  of  the 
defendant  in  the  execution  to  satisfy  the  same,  or  any  part 
thereof,  and  that  at  the  expiration  of  [ninety)  days  from  its 
issue  he  returned  the  execution,  no  property  found,  then  the  plain- 
tiff is  entitled  to  recover  in  this  suit  the  auiount  of  said  note 
and  interest,  provided  the  jury  further  believe,  froiu  the  evidence, 
that  during  the  tiuie  the  sheriff'  so  held  the  execution,  and  ever 
since  that  time,  said  A.  I>.  has  had  no  property,  out  of  which  the 
said  execution,  or  any  part  thereof,  could  have  been  made  by  the 
exercise  of  ordinary  diligence  on  the  part  of  the  plaintiff.  Jud- 
son  vs.  GooJcin^  37  111.,  286. 

If  the  jury  believe,  from  the  evidence,  that  the  plaintiff 
prosecuted  the  maker  of  the  note  by  suit  at  the  first  term  of 
court  after  the  note  was  due,  and  recovered  judgment  upon  it 
at  said  term,  and,  with  all  reasonable  diligence,  had  his  execu- 
tion issued  to  the  shei-iff  oE  the  county  where  the  maker  of  the 
note  resided,  and  the  sheriff  returned  the  said  execution,  in 
Avliole  {or  in  j)<t,rt)  unsatisfied,  and  no  property  found,  then  the 
plaintiff  is  entitled  to  recover;  provided  the  jury  believe,  from 
iho  evidence,  that  the  defendant  in  the  execution  has  had  no 
2>roperty  in  his  possession  liable  to  l)e  taken  on  said  execution, 
r.s  explained  in  these  instructions,  since  the  maturity  of  the  said 
note, and  before  the  commencement  of  this  suit,  or  no  such  prop- 
erty known  to  the  plaintiff  or  his  attorney,  or  which  they  might 
have  discovered,  by  the  exercise  of  reasouable  care  and  diligence 
directed  to  that  end. 


IN   CIVIL    ACTIONS.  309 

The  court  instructs  the  jury,  that  in  order  to  render  the 
assignor  of  a  promissory  note  liable  on  his  indorsement,  upon 
the  ground  that  the  holder  has  used  due  diligence  to  collect  the 
note  fi-om  the  maker,  the  assignee  must  show,  by  a  preponder- 
ance of  evidence,  that  he  instituted  a  suit  against  the  maker  and 
prosecuted  it  to  judgment,  at  the  earliest  practicable  time,  and  that 
he  took  steps  to  enforce  payment  of  the  judgment,  by  issuing 
an  execution  thereon,  and  placing  the  same  in  the  hands  of  the 
proper  officer  as  soon  as  this  could  be  done  by  the  exercise  of 
reasonable  diligence  in  that  behalf. 

The  court  instructs  the  jury,  that  our  statute,  in  relation  to 
promissory  notes,  makes  the  indorser  or  assignor  of  a  promissory 
note  liable  only  in  case  the  assignee  has  used  due  diligence  to 
collect  the  money  from  the  maker. 

Due  diligence  does  not  consist  in  merely  instituting  a  suit 
against  the  maker  and  prosecuting  it  to  judgment,  but,  in  order 
to  show  this  diligence,  the  assignee  must  show,  by  a  preponder- 
ance of  evidence,  that  within  the  county  where  the  suit  was 
commenced  he  had  used  all  the  means  that  the  law  has  furnished 
liim  with  to  enforce  the  collection  of  the  money.  Holhrook  vs. 
Yihhard,  3  Scam.,  405. 

What  is  Due  Diligence  —  Suit  Unavailing. — That  when  a  note  i'-, 
assigned  by  the  payee,  the  intention  of  the  law  is,  that  the  assignee 
shall  make  the  amount  out  of  the  maker  of  the  note,  if  it  can  be 
done  by  reasonable  diligence. 

Due  and  reasonable  diligence  means  such  diligence  as  a  care- 
ful, diligent  and  prudent  man  would  ordinarily  exercise  in  the 
conduct  of  his  own  affairs.     Judson  vs.  GooJciym,  37  111.,  286. 

The  jury  are  instructed,  that  when  the  indorsee  seeks  to  re- 
cover against  the  indorser  of  a  promissory  note,  upon  the  ground 
that  a  suit  against  tlie  maker  would  have  been  unavailing,  the 
fact,  if  proved,  that  the  maker  was  solvent  when  the  note  came 
due,  will  not  affect  the  liability  of  the  indorser,  if  it  appears, 
Irom  the  evidence,  that  such  solvency  did  not  continue  until  a 
suit  against  the  maker  could  have  been  made  availing. 

If  the  jury  believe,  from  the  evidence,  that  on  or  about,  etc., 
the  defendant  sold  to  the  plaintiff  the  note  shown  in  evidence, 


310  INSTRUCTIONS 

and  then  and  there  assigned  the  same  to  him  by  writing  liis 
name  on  the  back  thereof,  and  that  at  the  time  when  the  note 
came  due  the  said  makers,  and  each  of  them,  was  insolvent,  and 
have  ever  since  remained  so.  and  that  a  suit  against  them  would 
have  been  unavailing,  then  the  jury  should  find  the  issues  for  the 
plaintiff,  and  assess  the  damages  at  the  amount  due  on  said  note. 

Part  of  Note  Collectable  .Vj?aiiist  Maker. — Tliougli  the  jury  may  be- 
lieve, from  the  evidence,  that  l)y  the  use  of  reasonable  diligence 
ao-ainst  the  makers,  a  portion  of  the  note  could  have  been  made 
out  of  them,  but  not  the  whole  of  it,  then  the  plaintiff  is  entitled 
to  recover,  in  this  action,  the  residue  of  the  debt,  which  could 
not  have  been  made  by  suit,  and  reasonable  diligence  against  the 

makers. 

[See  Part  I.,  Sec.  lo.] 

Insolvency  of  Maker. — If  the  jury  believe,  from  the  evidence, 
that  the  plaintiff"  could  not  have  collected  the  amount  of  said 
note,  or  any  part  of  it,  from  the  maker,  by  due  diligence  in  the 
institution  and  prosecution  of  a  suit  against  him,  at  any  time 
after  the  note  became  due,  and  before  the  commencement  of 
this  suit,  then  the  plaintiff  is  entithul  to  recover. 

If  the  jui-y  believe,  from  the  evidence,  that  the;  maker  of  the 
note  in  question,  at  the  time  the  same  came  due,  had  no  prop- 
erty except  what  was  exempt  from  execution,  as  explained  in 
these  instructions,  and  that  he  was  insolvent,  and  that  that  con- 
dition of  things  continued  to  the  commencement  of  this  suit, 
then  the  plaintiff  was  under  no  obligation  to  commence  a  suit 
against  the  maker  of  the  note,  in  order  to  hold  the  defendant 
liable. 

If  the  jury  believe,  from  the  evidence,  tliat  at  all  times,  after 
the  note  came  due,  the  institution  of  a  suit,  by  the  plaintiff, 
ao-ainst  the  maker,  would  have  been  unavailing  to  collect  the 
amount  of  said  note,  or  any  part  of  it,  then  the  jury  should  find 
for  the  plaintiff. 

If  the  jury  believe,  from  the  evidence,  that  at  the  time  when 
the  note  fell  due,  the  maker  was  notoriously  insolvent,  and  lias 
so  continued  up  to  the  time  of  the  commencement  of  this  suit, 
and  that  the  prosecution  of  a  suit  against  him  would  have  been 


IN    CIVIL    ACTIONS. 


311 


unavailing,  to  obtain  the  amonnt  due  on  the  note,  or  any  part 
thereof,  the  jury  should  fiud  for  the  plaintiff. 

Execution  Returned— No  Property  Found The  court  instructs  the 

jury,  that  the  return,  by  a  coustable,  of  an  execution,  issued 
against  the  maker  of  the  note,  unsatisfied,  or  no  property  found, 
is  proper  evidence  to  be  considered  by  the  jury,  with  all  the 
other  evidence  in  the  case,  as  tending  to  show  that  the  defend- 
ant in  the  execution  had  no  personal  property,  subject  to  execu- 
tion, while  the  execution  was  in  the  hands  of  the  officer,  nor  at 
the  time  of  such  return. 

That  the  execution  returued  no  property  found  by  the  sheriff 
of  this  county,  is  proper  evidence,  to  be  considered  by  the  jury, 
with  all  the  other  evidence  in  the  case,  as  tending  to  show  that 
the  maker  of  the  note  had  no  personal  or  real  propei-ty  in  this 
county,  subject  to  execution  during  the  time  the  sheriff  held  such 
execution,  nor  at  the  time  of  said  return. 

Insolvency  may  be  Proved  by  Other  Evidence. — The  court  further 
instructs  the  jury,  that  the  fact  that  a  suit  against  the  maker 
would  have  been  unavailing,  may  be  proved  by  any  other  legal 
testimony,  as  well  as  by  the  return  of  an  execution  against  him 
unsatisfied.  To  entitle  the  plaintiff  to  recover,  it  is  only  neces- 
sary for  the  jury  to  believe,  from  the  evidence,  that  such  suit 
would  have  been  unavailing.  2  Pars,  on  N.  &  B.,  142 ;  Roberts 
vs.  Haskell,  20  111.,  59. 

Return  of  the  Officer  Not  Conclusive The  court  instructs  the  jury, 

that  the  executions,  introduced  in  evidence  with  the  returns 
thereon  indorsed,  of  no  property  found,  are  not  alone  conclusive 
evidence  that  the  maker  of  the  note  was  at  the  time  insolvent, 
or  that  due  diligence  against  him  would  have  been  unavailing. 
Roberts  vs.  Haskell,  20  111.,  59. 

Execution  from  Justice,  no  Evidence  Regarding  Real  Estate. — The  jury 
are  further  instructed,  that  the  return  of  an  officer,  of  no  prop- 
erty found,  on  an  execution  issued  by  a  justice  of  the  peace,  is 
no  evidence  that  the  defendant,  in  the  execution,  did  not  have 
real  estate  in  the  county,  liable  to  execution,  at  the  date  of  such 
return. 


312  ixsTitrcTioNS 

Possession  of  Pei*soiial  Property  Evidciioe  of  (hvnorship. — The  court 
instnu-ts  the  jurv,  that  when  one  porsou  sells  j)crsou;il  ])ropertv 
to  another,  and  retains  possession  of  it,  the  property  would  l)e 
subject  to  levy  under  an  execution  against  the  seller,  so  long  as 
it  remains  in  his  possession,  such  a  sale  being,  in  law,  fraudu- 
lent, as  against  subsequent  purchasers,  in  good  faith,  and  execu- 
tion creditors  of  the  seller.     IJuni})  on  I' rand.  Con.,  60. 

If  the  jury  believe,  from  the  evidence,  that  A.  B.,  the  maker 
of  the  note  in  (piestion,  had  in  his  possession  property  subject  to 
execution,  as  explained  in  these  instructions,  sufficient  in  value 
to  have  paid  the  notes,  at  any  time  after  a  judgment  might  have 
been  obtained  against  him,  by  the  use  of  reasonable  diligence, 
and  before  the  commencement  of  this  suit,  then  the  jury  should 
find  for  the  defendant. 

That  the  possession  of  personal  property  is  jprima  facie 
evidence  of  ownership;  and  in  this  case,  if  the  jury  believe, 
from  the  evidence,  that  after  the  maturity  of  the  note,  and  after 
a  judgment  might  have  been  obtained  thereon  against  the  maker, 
and  before  the  commencement  of  this  suit,  A,  B.,  the  maker  of 
the  note,  was  in  possession  of  personal  proj^erty,  sufficient  in 
value  to  have  paid  the  note,  over  and  above  his  property  exempt 
from  e\e(nition,  then  it  was  the  duty  of  the  plaintiff  to  use  all 
reasonable  diligence  to  make  the  debt  out  of  the  maker  of  the 
note,  by  getting  a  judgment,  and  levying  an  execution  on  such 
property,  and  trying  the  title  to  the  same,  if  it  was  claimed  by 
others;  and  if  the  jury  believe,  from  the  evidence,  that  the 
plaintiff  did  not  do  so,  and  that  on  this  trial  he  has  failed  to 
overcome  or  remove  the  presumption  of  ownershij3  arising  from 
such  possession,  ]»y  a  preponderance  of  evidence,  then  the  jury 
should  find  for  the  defendant. 

If  the  jury  believe,  from  the  evidence,  that  at,  or  about,  the 
time  the  note  in  (piestion  became  due,  and  shortly  afterwards, 
the  maker  had  j)roperty  in  his  ])ossession,  not  e\em[>t  from  exe- 
cution, as  explained  in  these  instructions,  sufficient  to  have  paid 
the  said  note,  or  any  considerable  part  of  it,  then  the  presump- 
tion of  law  is,  that  such  pnjperty  belonged  to  him,  and  that  I)y 
the  use  of  due  diligcmcc!  in  the  institution  and  j)rosecution  of  a 
suit  again&t  the  maker,  the  amount  of  the  note,  or  a  part  of  it, 


IN    CIVIL    ACTIONS.  313 

could  have  been  made  out  of  the  maker;  and  the  burden  of  proof 
is  on  the  plaintiff  to  show,  bj  a  preponderance  of  the  evidence, 
that  such  jiroperty  did  not  belong  to  the  said  S.  M.,  or  that  for 
some  reason  it  was  not  available  for  the  payment  of  said  note. 

The  court  further  instructs  the  jury,  that  to  render  the 
assignor  of  a  note  liable  thereon,  the  holder  must  have  used  due 
diligence  to  collect  it,  by  the  institution  or  prosecution  of  a  suit 
against  the  maker,  unless  it  appears,  by  a  preponderance  of  the 
evidence,  that  the  institution  of  such  suit  would  have  been 
unavailing. 

That  to  excuse  the  holder  of  a  note  from  the  use  of  diligence 
to  collect  it  of  the  maker,  it  is  not  sufficient  to  show  that  the 
maker  had  no  visible  property  in  his  hands,  or  possession;  it 
must  be  further  proved,  by  a  preponderance  of  evidence,  that 
he  apparently  had  no  means  with  which  to  pay  the  note,  or  was 
so  insolvent  as  to  be  unable  to  pay  it. 

The  court  instructs  the  jury,  that,  even  though  they  should 
believe,  from  the  evidence,  that  at  the  time  the  note  fell  due, 
the  maker,  S.  M.,  was  insolvent,  still,  if  the  jury  should  further 
believe,  from  the  evidence,  that  had  the  plaintiff  used  due  dili- 
gence in  the  collection  of  the  note,  he  could  have  collected  the 
same  from  the  maker,  then  the  jury  will  find  for  the  defendant. 

If  the  jury  believe,  from  the  evidence,  that  after  a  judgment 
might  have  been  obtained  against  the  maker  of  the  note,  and 
before  the  commencement  of  this  suit,  he  had  personal  property, 
not  exempt  from  execution,  as  explained  in  these  instructions, 
sufficient  to  have  paid  the  debt,  or  some  considerable  part  of  it, 
such  state  of  facts  raises  a  presumption  that  the  note,  or  such 
part  of  it,  could  have  been  collected  of  the  maker. 

If  the  jury  believe,  from  the  evidence,  that  S.  M.,  the  maker 
of  the  note,  was  in  possession  of,  and  had  under  his  control,  per- 
sonal property  during,  etc.,  such  possession  is  presumptive 
evidence  that  he  owned  said  property;  and  unless  the  jury 
believe,  from  the  evidence,  that  some  one  else  owned  the  prop- 
erty,  the  presumption  would  be,  that  it  really  belonged  to  the 
said  S.  M.     Bohevts  vs.  Haskell,  20  111.,  59. 


ol-i  INSTRUCTIONS 


GUARANTOR  OF  PAYMENT. 

Note.— Parsons  says:  "There  is  much  diversity  of  opinion  among  the 
courts  of  the  different  states,  as  to  the  nature  of  the  contract  to  be  implied 
from  the  blank  indorsement  of  one  not  a  party  to  the  bill  or  note,  when  the 
paper  is  negotiable,  and  the  indorsement  is  made  before  its  delivery  to  the 
payee.  In  some  statts,  one  indorsing  in  such  manner,  is,  prima  facie,  re- 
garded as  a  guiirantor;  in  others,  as  an  indorscr;  and  in  others,  as  a  joint 
promissor,  or  surety.  But  in  most  of  the  states,  the  effect  of  such  an 
indorsement  is  hold  to  d<!pond  upon  the  intention  of  the  parties,  which  may 
be  ascertained  by  parol  evidence."     2  Pars,  on  N.  <t  B.,  ll'J. 

Guarantor— Liability  tJenorally. — The  jury  arc  instructed,  that  a 
o-uarantor  of  a  promissory  note  cannot  l)e  made  liable  beyond 
the  express  terms  of  his  contract  or  nudcrtakluij;'.  Ho  lias  a 
right  to  prescribe  the  terms  and  conditions  upon  which  he  will 
assume  a  respousilnlity,  and  no  other  person  has  a  right  to 
change  those  terms,  not  even  with  the  design  of  dimiuishing  the 
probabilities  of  ultimate  loss  by  the  guarantor;  and  it  is  wholly 
immaterial  whether  the  change  is  advantageous  to  him  or  not. 
Ryan  vs.  The  Trusteef^,  14  111.,  20. 

Name  of  Third  Person  on  Back  of  Note. — That  the  signature  of  a 
third  party,  in  blank,  on  the  back  of  a  note  in  the  hands  of  the 
payee,  is  presumptive  evidence  that  it  was  placed  there  as  a 
guiii-anty  at  the  time  of  the  execution  of  the  note. 

If  the  jury  believe,  from  the  evidence,  that  the  defendant 
wrote  his  name  on  the  back  of  the  note  in  (piestion  before  it  Avas 
delivered  to  the  i)ayee,  then  the  presumption  of  law  is,  that  he 
indorsed  the  note  as  a  guarantor  of  the  payment  of  the  same, 
and  in  such  case  the  defendant  would  become  liable  to  pay  the 
note  at  maturity,  if  it  was  not  then  paid  by  the  maker;  nidess 
the  jury  further  believe,  from  the  evidence,  that  it  was  expressly 
agreed  and  understood  by  the  parties  to  the  note,  when  the  de- 
fendant indorsed  it,  that  he  did  not  indorse  it  as  guaraiitor  of 
the  payment. 

That  where  the  name  of  a  person  not  the  payee  of  a  note  is 
indorsed  on  it,  l)efore  delivery,  in  the  absence  of  evidence  to  the 
contrarv,  he  indorses  it  as  a  guarantor.  Glichauf  vs.  Kauf- 
m.ann,  To  ill.,  37 


IN    CIVIL    ACTIONS, 


315 


LiaWe  Until  Note  is  Paid. — That  the  liability  of  the  t^niarautor  of 
a  note  continues  until  the  note  is  paid  or  ])arred  by  the  statute 
of  limitations,  and  he  is  not  discharged  by  a  mere  delay  in 
bringing  suit  against  the  maker.  Parkhurst  vs.  Vail,  73  111., 
o±o. 

Delay  Will  Not  Release. — That  mere  delay,  on  the  part  of  a  cred- 
itor, to  proceed  against  the  principal  debtor,  does  not  discharge 
the  surety;  all  that  the  surety  has  a  right  to  require  is  that  the 
creditor  should  do  no  affirmative  act  to  his  prejudice.  Villars 
v:.  Palmer,  67  111.,  20i;  Edwd.  on  B.  &  N.,  292;  2  Pars,  on 
N.  &  B.,  24G. 

Consideration  for  (guaranty. — The  jury  are  instructed,  as  a  matter 
of  law,  that  to  render  a  contract  of  guaranty  binding,  it  must 
be  upon  a  good  or  valuable  consideration.  If  a  guaranty  is 
placed  upon  tlie  back  of  a  note,  at  the  the  time  of  its  execution 
or  before  its  delivery  to  tlie  payee,  so  as  to  form  a  part  of  tlie 
original  transaction,  then  no  other  considerati(jn  need  be  shown. 

But  when  the  name  of  a  guarantor  is  written  on  the  back  of 
a  note,  after  its  delix-ery  to  the  payee,  then  to  make  the  guaran- 
tor liable  the  jury  must  believe,  from  the  evidence,  that  there 
was  some  new  consideration  for  such  guaranty.  Joslyn  vs.  Ool- 
Imsoii,  26  111.,  61;  2  Pars,  on  N.  &  B.,  126;  Ware  vs.  Adams^ 
21  Me.,  177;  White  vs.  White,  30  Vt.,  338. 

The  court  instructs  the  jury,  that  if  a  tliird  party  signs  his 
name,  as  a  guarantor,  upon  a  promissory  note,  before  its  delivery 
to  the  payee,  the  consideration  of  the  note  will  be  presumed  to 
be  the  consideration  of  the  guaranty ;  but  if  he  signs  it  after 
delivery  to  the  payee,  then  a  consideration  must  be  shown. 

Release  of  tfuarantor. — The  court  instructs  the  jury,  that  a  valid 
agreement  between  the  payee  or  holder  and  the  principal  maker 
of  a  promissory  note,  for  an  extension  of  the  time  of  payment 
of  the  note,  after  its  maturity,  will  release  the  guarantor  {or 
i<urety),  unless  he  consents  to  the  agreement  at  the  time  it  is 
made,  or  afterwards  ratifies  it.  Edwd.  on  B.  &  IST.,  291 ;  2  Pars, 
on  N.  &  B.,  215;  Danforthy^.  Simple,  73  111.,  170. 


31G  INSTKUCTIONS 

The  jury  are  further  instructed,  that  an  agreement  to  extend 
the  thue  of  payment  of  a  note,  after  its  maturity,  made  between 
the  holder  and  the  principal  maker,  to  have  the  effect  to  release 
the  indorser,  nnist  be  a  valid  agreement,  upon  a  sufficient  con- 
sideration, and  one  that  tlie  maker  could  enforce  as  against  the 
pavee  or  holder  of  the  note.  An  agreement  to  continue  to  pay 
usury  {or  an  agreement  to  continae  to  pay  interest  at  the  rate 
mentioned  in  the  note)  M'ould  not  be  such  an  agreement,  and  it 
would  not  release  the  indorser.  Stewart  vs.  Parker,  55  Ga., 
C5G;  White  vs.  Wliitney,  51  Ind.,  12-i;  Myers  vs.  First  Nat. 
BJc.,  TS  III.,  257;  Weed  c6  Co.  vs.  Oherreioh,  38  Wis.,  325;  Faw- 
cett  vs.  Freshwater,  31  Ohio  St.,  037. 

That  in  order  that  an  agreement  between  the  creditor  and 
principal  debtor  on  a  note,  to  extend  the  time  of  payment,  shall 
operate  to  discharge  a  guarantor,  or  be  available  to  hiui  as  a  de- 
fense, the  agreement  must  be  such  a  one  as  can  be  enforced  by 
the  principal  against  the  creditor. 

That  a  contract  to  extend  the  time  of  payment  on  a  note,  in 
consideration  of  money  actually  paid,  is  a  binding  contract,  and 
releases  the  surety  on  the  note,  if  made  without  his  knowledge 
or  consent,  whether  the  money  so  paid  be  regarded  as  usury  or 

not. 

That  the  contract  of  a  surety  is  construed  strictly  in  his  favor, 
and  he  cannot  be  held  responsible  beyond  the  precise  terms  of 
his  contract;  and  any  binding  contract  by  which  the  holder  of 
a  note  agrees  to  give  additional  time  to  the  maker,  without  the 
assent  of  the  guarantor,  will  release  him,  and  this  whether  the 
contract  is  made  before  or  after  the  maturity  of  the  note. 

Subsequent  Promise  to  Pay. — The  court  instructs  the  jury,  as  a 
matter  of  law,  that  a  promise,  ])y  the  indorser  of  a  note,  to  pay 
it,  made  after  the  maturity  of  the  note,  and  with  the  knowledge 
on  the  part  of  the  promisor  of  all  the  material  facts  relating  to 
the  non-payment  of  the  note  by  the  maker,  amounts  to  a  waiver 
of  proof  of  the  insolvency  of  the  maker,  and  of  the  necessity 
of  using  diligence  to  collect  the  same  by  the  institution  and 
prosecution  of  a  suit  against  him.  And,  in  this  case,  if  the 
jury  believe,  from  the  evidence,  that  since  the  note  became  due, 


IN    CIVIL    ACTIONS.  317 

the  defendant,  with  full  knowledge  of  all  the  facts  relating  to 
the  liability  and  responsibility  of  the  maker,  promised  the  plain- 
tiff to  pay  him  the  note,  then  the  jury  should  find  for  the  plain- 
tiff, regardless  of  the  insolvency  of  the  maker.  1  Pai-s.  on  X. 
&  B.,  584;  Edwd.  on  B.  &  N.,  650;  Tebhetts  vs.  Dowd,  23 
Wend.,  379;  Ilmjlies  vs.  Bowen,  15  la.,  446. 

That  the  rule  of  law  is,  that  when  the  holder  of  a  promissory 
note  is  guilty  of  such  laches  as  will  release  an  indorser,  and  the 
indorser  afterwards  promises  to  pay  the  note,  with  full  knowl- 
edge of  the  facts,  which  would  operate  to  discharge  him,  then 
the  indorser  will  still  be  liable  upon  his  indorsement.  Whether 
the  indorser,  in  such  case,  knows  or  does  not  know  that  he  is 
released  from  liability,  as  a  matter  of  law,  makes  no  difference ; 
it  is  enough  if  he  knows  the  facts,  and  makes  the  promise. 
Edwd.  on  B.  &  K,  651;   Tehhetts  vs.  Dowd,  23  Wend.,  379. 

If  the  jury  believe,  from  the  evidence,  that  since  the  note 
sued  on  became  due,  the  defendant,  with  full  knowledge  of  all 
the  facts  relating  to  the  non-payment  of  the  note  by  the  maker, 
has  promised  to  pay  it,  then  the  law  presumes  that  the  maker  of 
the  note  was  insolvent  at  the  time  the  note  became  due,  and  that 
a  suit  against  him  would  have  been  unavailing. 

If  the  jury  believe,  from  the  evidence,  that  the  maker  of  the 
note  was  solvent  at  and  since  its  maturity,  and  that  the  defend- 
ant was  released  from  his  liability  thereon  as  indorser  by  the 
failure  of  the  plaintiff  to  sue  the  maker,  still,  if  the  jury  believe, 
from  the  evidence,  that  the  defendant,  with  full  knowledge  of 
all  these  facts,  afterwards  promised  to  pay  it,  then  his  ante- 
cedent liability  therefor  is,  in  law,  a  sufficient  consideration  to 
support  his  promise  to  pay  the  same. 

That  when  the  principal  maker  and  the  holder  of  the  note 
agree,  for  a  valuable  consideration,  to  extend  the  time  of  pay- 
ment of  the  note,  without  the  knowledge  or  consent  of  the 
surety  or  guarantor,  such  an  agreement  will  release  the  surety 
or  guarantor;  but  if  the  surety  subsequently  promises  to  pay  the 
note,  with  knowledge,  at  the  time,  of  such  previous  extension, 
this  will  be  a  waiver  of  any  defense  which  he  might  have  had 
by  reason  of  the  extension. 


318  INSTRUCTIONS 

Failure  or  Want  of  Coiisitleration— Burden  of  Proof. — Tho  court 
instructs  the  jury,  tluit  uiidcr  the  hiws  of  this  state,  the  note 
offered  in  evidence  in  this  suit  is  prima  facie  evidence  of  an 
honest  indebtedness  owing  from  the  maker  to  the  payee  of  tlie 
note,  at  the  time  it  was  made  and  delivered;  and,  unless  the 
defendant  has  established,  by  a  preponderance  of  evidence,  that 
the  note  was  given  without  consideration  (or  that  the  considera- 
tion has  failed),  in  whole  or  in  part,  or  that  since  it  was  made 
and  delivered,  the  note,  or  some  part  thereof,  has  been  paid,  then 
the  jury  should  allow  the  plaintiff  in  this  suit  the  amount  of 
said  note,  principal  and  interest. 

That  when,  in  a  suit  upon  a  note,  the  defendant  sets  up  a 
failure  of  the  consideration  of  the  note,  either  in  whole  or  in 
part,  as  a  defense  to  the  action,  he  must  establish  such  failure, 
by  a  preponderance  of  the  evidence;  and,  in  this  suit,  if  the 
jury  find  that  the  defendant  has  not  proved  the  failure  of  the 
consideration,  as  alleged  in  his  pleas,  by  a  preponderance  of 
the  evidence,  the  jury  should  find  for  the  plaintiff  for  the  face 
of  the  note  and  interest. 

That  the  production  of  the  note  in  evidence  entitles  the  plain- 
i\^,  prima  facie,  to  recover  the  amount  which  appears  to  l)e  due 
by  the  face  of  the  note,  after  deducting  the  payments,  if  any, 
that  have  been  made  thereon ;  and  the  burden  of  proving  any 
defense  to  said  note  is  upon  the  defendant,  aiul  unless  he  has 
proved  his  alleged  defense  by  a  preponderance  of  evidence,  the 
jury  should  disregard  such  defense  in  arriving  at  their  verdict. 

Consideration  Presumed,  "When. — The  court  instructs  the  jury, 
that  it  is  not  necessary,  in  the  first  instance,  for  the  j)laintiff  to 
show  any  consideration  for  the  giving  of  said  note;  the  note 
itself  imports  consideration,  and  is  sufficient  to  entitle  the  plain- 
tiff to  recover,  unless  the  jury  believe,  from  the  evidence,  that 
the  defendant  has  shown  some  good  and  valid  defense  to  the 
same,  and  the  burden  of  proof  is  on  him  to  sliow  such  defense. 

The  jury  are  further  instructed,  that  the  law  implies  that  every 
promissory  note  that  is  made  and  delivered,  was  given  for  a 
good  and  valuable  consideration;  and,  in  this  case,  the  burden 
is  upon  the  defendiuit  to  prove,  l)y  a  preiiondcrance  of  the  evi- 


IN    CIVIL    ACTIONS.  319 

dence,  that  the  note  in  question  was  given  without  considera- 
tion, and  unless  he  has  done  this,  the  jury  should  find  for  the 
plaintiff. 

Abandonment  of  Claim  a  Good  Consideration. — If  the  jury  believe, 
from  the  evidence,  that  at  the  time  the  note  was  given,  the  payee 
of  the  note,  in  good  faith,  claimed  to  have  a  lien  upon  said 
lands,  for  the  payment  of  a  debt  due  him,  or  some  right  or 
interest  in  or  to  the  land,  and  that  the  note  was  given  in  con- 
sideration of  his  giving  up  and  abandoning  such  claim,  and  that 
he  did  thereupon  give  up  and  aliandon  said  claim,  that  would 
be  a  sufficient  consideration  for  the  note,  and  it  would  not  matter, 
in  such  case,  whether  his  claim  was  a  valid  one  in  law  or  not. 

Disputed  Claim  must  be  Sustainable. — The  jury  are  instructed, 
that  to  render  the  forbearance  of  a  claim,  or  an  agreement  not 
to  enforce  an  alleged  claim,  a  sufficient  consideration  for  a 
promissory  note,  it  is  essential  that  the  claim  itself,  if  well  founded, 
be  sustainable,  either  at  law  or  in  equity,  in  favor  of  the  person 
for  whose  benefit  the  note  is  given;  and  the  court  instructs 
the  jury  that  a  claim  based  upon  the  settlement  of  a  criminal 
charge  cannot  be  sustained,  either  at  law  or  in  equity,  and  if  the 
jury  believe,  from  the  evidence,  that  the  note  in  question  was 
given  in  settlement  of  a  criminal  charge,  then  it  is  without  con- 
sideration. Heaps  vs.  Dunham,  95  111.,  583 ;  Parsons  vs.  Pen- 
dleton, etc.,  59  Ind.,  36;  Tucker  vs.  Rank,  42  la.,  80;  O.  c£'  C. 
Bd.  Co.  vs.  Potter,  5  Greg.,  228. 

Want  of  Consideration. — The  court  instructs  the  jnry,  that  the 
want  of  a  consideration  destroys  the  validity  of  a  note  in  the 
hands  of  the  payee,  or  in  the  hands  of  any  one  chargeable  with 
notice  of  a  want  of  consideration,  and  this  without  regard  to  the 
good  faith  of  the  transaction  in  which  the  note  was  given;  and 
in  this  case,  if  the  jui-y  believe,  from  the  evidence,  that  the  note 
was  given  without  any  good  or  valuable  consideration,  they 
should  find  for  the  defendant;  provided,  that  the  jury  further 
believe,  from  the  evidence,  that  the  note  was  assigned  to  the 
plaintiff  after  its  maturity,  or  that  he  had  notice  of  such  want 
of  consideration  when  it  was  assimied  to  him. 


320  INSTRUCTIONS 

If  the  jury  believe,  from  the  evidence,  that  the  note  in  ([ues- 
tiun  was  ^ivon  without  a  i2;(K)d  or  vahiable  consideration,  then, 
ahhoui-'h  the  jury  may  further  believe,  from  the  evidence,  that 
the  plaintiff  has  promised  to  pay  the  note  since  it  was  made  and 
delivered,  such  a  promise  would  not  be  l)indinii:  on  the  defend- 
ant, nnless  it  was  made  npon  some  new  and  valuable  considera- 
tion; nnless  the  jury  further  believe,  from  the  evidence,  that  the 
note  was  assigned  to  the  plaintiff  before  its  maturity,  and  that 
he  had  no  notice  of  such  want  of  consideration  when  he  pur- 
chased the  note. 

Note  Obtained  by  Fraudulent  Representation. — As  regards  the  de- 
fense set  up  in  this  case,  that  the  note  was  obtained  by  false  and 
fraudulent  representations,  the  court  instructs  the  jury,  that  to 
defeat  a  recovery  on  that  ground,  the  jury  must  believe,  from 
the  evidence,  that  the  alleged  representations  were  made,  as 
charged;  that  they  were  false  when  they  were  made;  that  tlie 
said  A.  B.  then  knew  them  to  be  false;  that  they  were  such  as  a 
man  of  ordinary  caution  and  prudence  would  l)e  likely  to  rely 
upon ;  that  the  said  defendant  did  rely  upon  the  truth  of  them, 
and  was  induced  thereby  to  give  the  note  in  question,  and  that 
he  has  been  in  some  manner  injured  by  such  representations. 

Representations  must  be  Maiterial. — If  the  jury  believe,  from  the 
evidence,  that  the  defendant  got  for  his  note  all  that  he  ex- 
pected to  get,  so  far  as  relates  to  quantity  and  value,  in  the 
transaction  in  which  the  note  was  given,  then  he  is  liable  npon 
the  note,  althongli  the  said  A.  B.  may  have  deceived  him  in  rela- 
tion to  his  own  inteiv^^t  in  the  pi-operty,  or  in  any  other  matter 
not  affecting  the  value  of  the  property  or  of  the  consideration  of 
the  note. 

Obtained  by  Fraud  and  Circumvention. — If  the  jury  l)elieve,  from 
the  evidence,  that  the  dei'eudiuit  wa^  induced  by  the  plaintiff, 
or  by  anyone  acting  for  him,  to  sign  the  note  offered  in  evidence 
in  this  case,  l)y  fraud  or  circumvention,  in  manner  and  form  as 
alleged  in  defendant's  plea,  then  the  said  note  is  void  as  to  the 
defendant,  and  lie  is  not  lial)le  thereon. 


IN    CIVIL    ACTIONS.  321 

If  the  jury  believe,  from  the  evidence,  that  the  said  A.  B. 
was  the  agent  for  the  plaintiff,  and  that  he  obtained  said  note 
from  the  defendant  as  such  agent;  and  further,  that  when  defend- 
ant signed  the  note  he  was  unable  to  read  writing  readily,  and  re- 
quested the  said  A.  B.  to  read  the  same  to  him  [oi-  the  said  A. 
B.  offered  to  read  the  same  to  him),  and  did  read  it  to  the 
defendant;  and  if  the  jury  further  believe,  from  the  evidence, 
that  the  said  A.  B.,  when  reading  said  note,  misread  the  same  in 
any  material  part,  and  thus  misled  the  defendant,  and  indnced 
him  to  sign  said  note,  when  he  would  not  otherwise  have  done 
so,  then  these  facts  would  constitute  fraud  and  circumvention 
within  the  meaning  of  the  law,  and  the  note  is  not  binding  upon 
the  defendant,  but  is  wholly  void  as  to  him.  Edwd.  on  B.  &  N., 
o25;  Chitty  on  Bills,  73. 

The  jury  are  instructed,  that  the  question  for  their  determina- 
tion in  this  case  is  not  whether  the  note  was  given  for  {a patent 
right),  but  the  real  question  is,  was  there  any  trick,  artifice  or 
fraud  practiced  upon  the  defendant  to  procure  his  signature. 
And  unless  the  defendant  has  shown,  by  a  preponderance  of 
evidence,  on  this  trial,  that  his  signature  was  obtained  to  said 
note  by  some  trick,  artifice  or  fraud,  so  that  he  signed  the  same 
without  knowing  that  he  was  signing  a  note,  then  the  jury  should 
find  for  the  plaintiff  upon  that  issue. 

That  the  defense  set  up  by  the  defendant  in  this  case  is,  that 
he  did  not  make  the  note,  and  also  that  his  signature  thereto 
was  obtained  .by  fraud  and  circumvention.  As  regards  the  latter 
of  these  defenses,  the  jury  are  instructed  that  it  is  wholly  imma- 
terial what  the  note  was  given  for,  or  what  deception  was  prac- 
ticed on  him  in  relation  to  the  consideration  of  the  note;  pro- 
vided the  jury  believe,  from  the  evidence,  that  the  defendant 
did  sign  the  note  in  fact,  and  knew  that  he  was  signing  the  note 
when  he  did  so. 

Frand  and  Circumvention  —  Illmois  Statute. —The  court  instructs 
the  jury,  that,  by  the  laws  of  this  state,  if  any  fraud  or  circum- 
vention be  used  in  obtaining  the  making  or  execution  of  a 
promissory  note,  such  note  will  be  absolutely  void  as  against  the 
maker,  whether  in  the  hands  of  the  party  committing  the  fraud, 
or  in  the  hands  of  any  assignee  of  the  instrument. 

21 


322  INSTRUCTIONS 

The  court  instructs  the  jury,  that  in  a  suit  by  the  assignee  of 
a  promissory  note,  the  fact,  if  proved,  that  the  execution  of  the 
note  was  procured  l>v  fraud  or  circuinventicui,  is  a  good  defense, 
and  it  is  innnatei'ial  whether  the  assignee  took  the  note  with  or 
without  notice  of  such  defense;  provided,  the  maker  used  rea- 
sonable care  and  caution  to  avoid  being  imposed  upon.  Hewitt 
vs.  Jones,  72  111,  218. 

That  if  a  person  is  induced,  through  a  fraud  practiced  upon 
him,  to  sign  a  promissory  note,  under  the  belief  that  it  is  an  in- 
strument of  an  entirely  different  cliaracter,  and  he  is  guilty  of 
no  negligence  on  his  part,  the  note  will  be  void  in  whosesoever 
hands  it  may  be,  as  having  been  obtained  through  fraud  and 
circumvention.     Hubhard  vs.  Banhin,  71  111.,  129. 

That  in  this  state,  if  the  signature  of  a  person  is  obtained  to  a 
note  by  the  fraud  or  circumvention  of  the  payee  thereof,  or  of 
any  person  acting  for  him,  then  such  a  note  will  be  wholly  void, 
even  in  the  hands  of  a  hona  fide  assignee,  without  notice;  pro- 
vided, it  appears,  from  the  evidence,  that  the  nuiker  of  the  note 
was  not  chargeable  with  any  want  of  reasonable  care  and  caution 
to  avoid  being  imposed  upon.  Griffiths  vs.  Kellogg,  39  Wis. 
290. 

If  the  jury  believe,  from  the  evidence,  that  the  defendant 
was  induced  to  execute  the  note  in  question  by  false  and  fraud- 
ulent representations  made  to  him,  regarding  the  character  of 
the  instrument  which  he  was  desired  to  sign,  so  that  he  was  led 
to  believe  the  paper  presented  was  a  wholly  different  instru- 
ment, then  the  note  is  void  as  to  him,  and  the  plaintiff  cannot 
recover  thereon;  provided,  the  jury  further  believe,  from  the 
evidence,  that  the  defendant  was  not  chargeable  with  any  neg- 
ligence which  contributed  to  the  deception.  DeCamjp  vs. 
Ilamma,  29  Ohio  St.,  4G7;  Iluhhard  vs.  Rankin,  71   111.,   129. 

Fraud  in  the  Consideration  not  Sufficient. — The  court  instructs  the 
jury,  that  fraud,  and  circumvention,  in  obtaining  the  execution 
of  a  note,  within  the  meaning  of  the  statute,  is  not  a  fraud 
which  relates  to  the  quality,  quantity,  value,  or  character,  of  the 
consideration  of  the  note.  It  means  some  trick,  artifice,  or 
device,  by  means  of  which  a  person  is  induced  to  give  the  note 


IN    CIVIL    ACTIONS.  323 

in  question,  under  tlie  belief  that  lie  is  giving  an  instrument  of 
a  different  character,  as  when  a  person  is  induced  to  give  a  note 
under  the  belief  that  it  is  a  receipt  (or  is  induced  to  give  a  note 
for  one  amount,  under  the  belief  that  it  is  for  a  different 
amount).  Latham  vs.  Smith,  45  111,,  25;  Butler  vs.  Cams, 
37  Wis.,  61. 

That  to  render  a  promissory  note  void  in  the  hands  of  a  hona 
fide  assignee,  on  the  ground  of  fraud  and  circumvention,  the 
fraud  must  relate  to  the  execution  of  the  note  itself,  and  not  to 
the  consideration.  The  fraud  must  relate  to  the  nature  and 
character  of  the  instrument,  or  to  the  amount  or  other  terms  of  the 
note,  ill  order  to  come  within  the  terms  fraud  and  circumven- 
tion, in  procuring  the  execution  of  the  instrumeut. 

The  jury  are  furrher  instructed,  that  in  this  suit  {or  utider  the 
plea  of  fraud  and  cirGumvention,  etc.),  the  jury  have  nothing 
whatever  to  do  with  the  question,  whether  the  machine  received 
by  the  defendant  was  worth  much  or  little,  or  whether  he  was 
deceived  and  defrauded  in  the  consideration  of  the  note.  So 
far  as  the  question  of  {fraud,  etc.)  is  concerned,  the  only 
question  for  the  jury  to  consider,  is  whether  the  defendant's 
signature  to  the  note  was  obtained  by  fraud  and  circumvention 
— that  is,  by  some  fraudulent  trick,  or  device. 

Signing  Withont  Reading. — If  the  jury  believe,  from  the  evidence, 
that  the  defendant  did  sign  the  note;  and  further,  that  he  was 
induced,  by  the  representations  of  the  said  A,  B.  regarding  the 
c<mtents  of  the  paper  thus  signed  by  him,  not  to  read  it  over; 
and  if  the  jury  further  believe,  from  the  evidence,  that  in  rely- 
ing upon  such  representations,  the  defendant  acted  as  the  great 
mass  of  men,  in  his  station  in  life,  and  engaged  m  the  same 
business,  would  have  acted,  and  that  in  that  regard  he  used 
ordinary  and  reasonable  care  and  caution  to  avoid  being  imposed 
upon,  then  the  plaintiff,  as  regards  the  question  of  fraud,  stands 
in  precisely  the  same  position  as  the  original  payee  would  have 
stood,  if  suit  had  been  brought  in  his  name. 

Though  the  jury  may  believe,  from  the  evidence,  that  the 
person  who  took  the  note  in  question,  practiced  a  fraud  upon 
the    defendant,  to  induce  him   to  give  the  note,  still,   if   the 


324  IN  S  T  R  U  0  T  I  O  N  3 

defendant  signed  the  same,  knowing  that  lie  was  giving  such  a 
note  as  the  one  in  controversy,  this  is  not  wiiat  the  law  means  by 
ol.taini ug  the  execution  of  a  note  by  fraud  or  circumvention. 

Mistake  as  to  Legal  Ellect. — If  the  jury  believe,  from  the  evi- 
dence, that  the  defendant,  at  the  time  he  signed  the  note  in 
question,  was  mistaken  as  to  its  legal  effect,  still,  if  the  jury 
further  believe,  from  the  evidence,  that  he  did  sign  the  note ;  that 
he  read  the  note  over,  and  knew  its  contents  at  the  time  he 
signed  it,  then  the  mistake,  on  his  part,  as  to  the  legal  effect  of 
the  note,  cannot  affect  the  plaintiff's  right  to  recover  in  this  suit. 

Reasonable  Care,  Wliat. — The  jury  are  instructed,  that  when  a 
person  executes  a  note,  he  must  be  diligent,  and  use  all  reason- 
able means  to  prevent  a  fraud  being  practiced  on  him,  and  if  he 
does  not  do  so,  he  will  be  liable  to  an  innocent  purchaser  of  the 
note,  befoi-e  maturity.  He  is  not  required  to  nse  every  possible 
pi-ecaution,  l)ut  only  such  as  would  be  expected  from  men  of 
ordinary  prudence,  in  the  same  station  of  life,  and  of  the  same 
general  lousiness  experience. 

That  in  order  to  make  the  defense  of  fraud  and  circumven- 
tion, in  obtaining  the  execution  of  a  note,  available  against  an 
innocent  assignee  thereof,  before  maturity,  it  is  only  necessary 
to  show  that  the  maker  of  the  note  used  ordinary  care  and  cau- 
tion to  prevent  l)eing  iuiposed  iqx)ii,  in  the  execution  of  the 
note,  and  that  the  execution  of  the  same  was  obtained  by 
fraud  and  circumvention. 

That  in  order  to  make  the  defense  of  fraud  and  circumven- 
tion, in  obtaining  the  execution  of  a  note,  available  against  such 
note,  in  the  hands  of  an  innocent  assignee,  before  maturity,  it  is 
not  necessary  that  the  maker  should  use  the  highest  degree  of 
care  and  caution,  to  avoid  being  imposed  upon;  it  is  only  neces- 
sary to  use  such  reasonable  caution  as  generally  governs  the  con- 
duct of  a  majority  of  prudent  men. 

Must  Use  Reasonable  (are  to  Avoid  [niposition. — That  a  person,  be- 
fore executinor  a  promissory  note,  should  use  all  reasonable  and 
ordinary  precautions  to  avoid  impositions,  and  if  able  to  read 
writing  readily,  he    should    examine    it   himself,    and    if    not 


IN    CIVIL    ACTIONS.  325 

able  to  read,  he  should  have  it  read  to  him,  by  some  one  in 
whom  he  has  confidence,  unless  some  trick  or  artifice  is  used,  or 
false  statement  made,  rcaioiiably  calculated  to  induce  him  to 
neglect  such  ordinary  prudence.  Hoss  vs.  Doland^  29  Ohio 
St.,  473. 

Burden  of  Proof. — That  the  aUeijation  that  his  signature  was 
obtained  by  fraud  and  circumvention,  is  one  upon  which  the 
defendant  has  the  burden  of  proof;  and  before  he  can  derive 
any  benefit  from  that  allegation,  he  must  prove  the  truth  of  it, 
by  a  preponderance  of  evidence :  and  unless  he  has  done  so,  the 
jury  should  find  for  the  plaintiff,  uj)on  that  issue. 

The  jury  ai-e  further  instructed,  that  when  a  person  sets  up 
fraud  and  circumvention,  to  defeat  a  recover}-  on  a  note,  and 
supports  such  defense  by  his  own  testimony  alone,  and  the  other 
party  to  the  transaction,  by  his  testimony,  denies  the  statements 
of  the  defendant,  in  respect  to  such  fraud,  and  both  parties  are 
equall}'  credible,  have  equal  oppoi-tunities  for  knowing,  and 
testify  apparentl}^  with  equal  fairness,  candor,  and  truthful- 
ness, and  neither  is  corroborated  by  other  evidence,  or  by  other 
facts,  or  circumstances  shown  on  the  trial,  then  the  defense  of 
fraud  is  not  proven. 

The  court  instructs  the  jury,  that  if  they  believe,  from  the 
evidence,  that  the  defendant  signed  his  name  to  the  note,  intro- 
duced in  evidence,  then  the  note  will  entitle  the  plaintiff  to 
recover,  unless  the  defendant  has  established,  by  a  preponder- 
ance of  evidence,  that  the  signature  to  the  note  was  obtained  by 
fraud  or  circumvention. 

Note  Stolen,  or  Wrongfnlly  Obtained. — If  the  jury  believe,  from 
the  evidence,  that  the  defendant  signed  the  note  in  question,  in 
this  case,  knowing  that  it  was  a  note,  and  they  also  believe,  from 
the  evidence,  that  the  note  was  assigned  to  the  plaintiff,  for  a 
valuable  consideration,  before  the  maturity  of  the  note,  in  the 
regular  course  of  business,  and  that  the  plaintiff,  at  the  time  of 
such  assignment,  had  no  notice  that  the  note  was  not  properly 
put  into  circulation,  then  the  plaintiff  will  have  a  right  to 
recover,  even  though  the  jury  may  further  believe  that  the  note 
was  obtained  from  the  maker  by  fraud  {or  that  it  was  stolen. 


326  INSTKUCTIONS 

from  etc)^  or  othenvise  wrongfully  put  into  circulation.    Claris 
vs.  Johnson,  54:  111.,  21M). 

That,  although  the  jury  may  believe,  from  the  evidence,  that 
the  note  in  question  was  lost  by  the  defendant  {or  stolen  from 
him),  or  otherwise  wrongfully  put  into  circulation,  still,  if  the 
jury  further  believe,  from  the  evidence,  that  the  plaintiff  took 
the  same,  in  the  regular  course  of  business,  in  g(3od  faith,  for  a 
valuable  consideration,  and  before  maturity,  and  without  any 
knowledge  of  the  manner  in  which  it  got  into  circulation,  then 
the  plaintiff  is  entitled  to  recover  on  the  note.  FranJdln,  etc., 
vs.  Ileinsman,  1  Mo.  App.,  33G;  Shiply  vs.  Carroll,  45  111., 
285;  Murry  vs.  Lardner,  2  Wall,  llo. 

Din-ess— Abuse  of  Criminal  Process. — The  court  instructs  the  jury, 
that  if  they  believe,  from  the  evidence,  that  the  note  sued  upon, 
in  this  case,  was  obtained  from  the  defendant  through  a  wrong- 
ful perversion  or  abuse  of  criminal  process,  as  explained  in 
these  instructions,  then  such  note  is  void  in  the  hands  of  the 
payee,  or  in  the  hands  of  any  person  taking  it  after  maturity,  or 
with  notice  of  the  manner  in  which  it  was  obtained. 

If  the  jury  believe,  from  the  evidence,  that  L.,  the  payee  of 
the  note,  caused  crimiiuil  process  to  be  issued  against  the  de- 
fendant, and  used  it  to  enforce  a  settlement  of  a  doubtful  claim, 
and  tliat  while  defendant  was  under  arrest,  under  such  process, 
the  said  L.  used  threats  against  the  defendant,  to  induce  him  to 
sign  the  note  in  controversy,  and  that  such  threats  were  of  such 
a  character,  and  made  under  such  circumstances,  as  to  be  likely 
to  terrify  a  man  of  ordinary  and  reasonable  lirmness,  and  that 
under  the  influence  of  su(;h  threats,  and  while  under  such  arrest, 
the  defendant  signed  the  notes,  then  the  law  is  that  such  note 
is  void,  etc. 

Note. — If  suit  is  brought  by  an  assignee  of  the  note,  qualify  these 
instructions  to  meet  that  state  of  the  case. 

The  court  instructs  the  jury,  that  free  consent  is  of  the 
essence  of  every  contract,  and  if  there  be  compulsion  there  is 
no  consent;  and  moral  compulsion,  such  as  that  produced  by 
threats  to  inflict  great  bodily  harm,  as  well  as  that  produced  by 
unlawful  imprisonment,  is  regarded,  in  law,  as  sutiicient  to 
destroy  free  agency. 


IN    CIVIL    ACTIONS.  32? 

That  threats  made  by  a  party  having  a  warrant  for  an  arrest, 
and  threats  to  execute  it,  or  threats  to  continue  a  prosecution 
after  an  arrest  under  the  warrant,  unless  the  demands  of  the 
person  making  the  tlireats  are  complied  with,  are  sufficient  to 
avoid  a  contract  entered  into  tlirough  fear  induced  by  such 
threats;  provided,  the  claim  is  of  doubtful  validity  or  is  dis- 
puted by  the  party  threatened. 

That  it  is  against  public  policy  that  criminal  process  should 
be  used  for  the  purpose  of  effecting  the  settlement  of  a  doubtful 
claim;  and,  in  this  case,  if  the  jury  believe,  from  the  evidence, 
that  the  plaintiff  obtained  and  used  a  warrant  for  the  arrest  of 
the  defendant,  for  the  purpose  of  effecting  a  settlement  of  a 
doubtful  claim  against  him,  and  thereby  obtained  the  notes  in 
question,  then  such  notes  are  void. 

If  the  jury  believe,  from  the  evidence,  that  the  execution  of 
the  notes  sued  upon  was  obtained  by  means  of  threats  against 
tlie  defoidant,  as  stated  in  such  defendant's  plea,  and  that  such 
threats  were  of  such  a  character  as  to  be  likely  to  terrify  a  man 
of  ordinary  and  reasonable  firmness,  then  duress  would  be  estab- 
lished, and  the  notes  thus  obtained  are  void. 

Lawful  Imprisonment  not  Duress. — The  jury  are  instructed,  that 
a  lawful  imprisonment  is  not  such  duress  as  will,  alone,  enable 
a  party  to  avoid  a  note  made,  while  so  imprisoned,  on  the  ground 
of  duress. 

And,  in  this  case,  although  the  jnry  may  believe,  from  the 
evidence,  that  the  notes  in  question  were  executed  and  delivered 
while  the  defendant  was  under  arrest,  still,  if  the  jury  further 
believe,  from  the  evidence,  and  under  the  instructions  of  the 
court,  that  such  arrest  was  legal,  then  such  arrest  alone  will  not 
render  the  said  notes  void.  Jleajps  vs.  Dunham  et  al.,  95  111., 
583. 

The  court  further  instructs  the  jnry,  that  there  is  no  evidence 
in  this  case  authorizing  the  arrest  of  the  defendant,  at  the  time 
in  question,  and  if  the  jnr}'  believe,  from  the  evidence,  that  the 
notes  were  given  while  the  defendant  was  under  arrest,  and  that 
the  giving  of  the  notes  was  induced  by  threats  to  prosecute  the 
defendant  for  the  offense  of,  etc.,  as  stated  and  set  out  in  the 


328  INSTRUCTIONS 

papers  iiitnxlncod  in  ovidonce  in  this  case,  or  to  furtliei-  pros- 
ecute tlie  defendant  under  such  arrest,  unless  he  sliouhl  give 
such  notes,  then  the  said  notes  were  obtained  by  duress,  and  are 
void  as  against  the  defendant;  provided,  the  jury  further  believe, 
from  the  evidence,  that  the  defendant,  at  the  time,  denied  the 
justice  and  legality  of  the  claim  for  which  the  notes  were 
given. 

If  the  jury  believe,  from  the  evidence,  that  the  plaintiff 
maliciously,  and  without  pi'obable  cause  for  such  arrest,  caused 
the  defendant  to  be  arrested  for  the  purpose  of  compelling  the 
defendant  to  settle  up,  or  secure  the  payment  of,  etc.,  and  that 
while  under  such  arrest,  and  for  the  purpose  of  securing  his 
discharge  therefrom,  the  defendant  executed  and  delivered  the 
note  in  question,  then  the  note  was  given  under  what  the  law 
terms  duress,  and  the  defendant  is  uoi  liable  thereon. 

[For  Malice  and  Probable  Cause,  See  Malicious  Prosecution.] 


NOTICE. 

Notice  to  Ag:ent. — The  jury  are  instructod,  that  it  is  a  i-ule  of 
law  that  notice  to  an  agent  is  notice  to  his  principal,  and  that 
what  is  known  to  an  agent  is  known  to  his  principal;  provided, 
such  notice  or  knowledge  is  received  1)V  the  agent  while  he  is 
acting  as  such  agent. 

That  notice  to  an  agent,  in  order  to  bind  the  principal,  must 
be  brought  home  to  the  agent,  while  engaged  in  the  business  or 
negotiation  of  the  principal  to  which  the  notice  relates;  and 
when  it  would  be  a  breach  of  trust  in  the  former  not  to  com- 
municate the  knowledge  to  the  latter.  Pi'iu.(jle  vs.  Dunn,  37 
Wis.,  449. 

That  while  it  is  a  gcnci-al  rule  of  law,  that  a  notice  to  an 
agent  is  notice  to  his  principal,  still,  in  order  to  bind  a  person 
bv  notice  to  his  agent,  it  must  appear,  from  the  preponderance 
of  the  evidence,  that  the  alleged  agent  was  the  agent  of  the 
party  songht  to  be  charged  in  relation  to  the  very  matter  to 
which  the  notice  relates,  and  that  the  notice  or  information  came 
to  the  knowledge  of  the  agent  while  he  was  acting  as  such  agent. 
[See  Principal  and  Agent.] 


IN    CIVIL    ACTIONS.  329 

Notice  to  Corporation. — The  court  instrncts  the  jury,  that  noti(;e 
to  a  corporation  can  only  be  given  by  giving  it  to  some  officer 
authorized  to  represent  the  corporation  in  the  particular  matter 
to  which  the  notice  relates ;  or  else  to  some  person  whose  situa- 
tion and  relation  to  the  corporation  imply  authority  to  represent 
the  corporation  in  such  matter.  1  Pars,  on  Cont.,  ()6 ;  Keenan 
vs.  Dubuque,  etc.,  13  la.,  375 ;  Fulton  Bh.  vs.  Neio  YorJc,  etc., 
4  Paige,  127;  Housatonic  Bh.  vs.  Martin,  1  Met.,  294;  Bh. 
of  the  U.  S.  vs.  Davis,  2  Hill.,  151 ;  Farmers',  etc.,  Bh.  vs. 
Payne,  25  Conn.,  444. 

The  jury  are  further  instructed,  that  a  single  director,  simply 
as  such,  has  no  authority  to  represent  or  bind  a  corporation ; 
and  although  the  jury  may  believe,  from  the  evidence,  that  the 
said  A.  B.  was  a  director  in  the  defendant  corporation,  and 
that  before,  etc.,  and  while  he  was  such  director,  he  had  knowl- 
edge, or  was  informed  of  the  fact,  etc.,  still,  these  facts  alone 
would  not  show  notice  to  the  defendant,  nor  bind  the  corpora- 
tion in  respect  to  such  notice. 

Facts  Calling  for  Inquiry. — The  court  instructs  the  jury,  that 
whatever  is  sufficient  to  put  a  purchaser  of  land  upon  inquiry, 
as  to  the  existence  of  an  unrecorded  deed,  is  sufficient  notice  of 
such  deed.  That  in  general,  where  notice  is  required  to  affect 
the  rights  of  parties,  a  knowledge  of  such  facts  as  ought  to  put 
an  ordinarily  prudent  person  upon  inquiry,  is  deemed  in  law 
equivalent  to  notice  of  the  facts,  to  the  knowledge  of  which  such 
inquiries  would  have  led.  Bump  on  Fraud.  Con.,  232 ;  Forhes 
vs.  How,  102  Mass.,  427 ;  Beaton  vs.  Frather,  84  111.,  330 ; 
Bice  vs.  Melendy.,  41  la.,  395. 

Whatever  is  notice  enough  to  excite  attention,  and  put  a  party 
on  his  guard,  and  call  for  inquiry,  is  notice  of  everything  to 
which  such  inquiry  might  have  led ;  and  every  unusual  circum- 
stance is  ground  of  suspicion,  and  prescribes  inquiry,  Russell 
vs.  Bauson,  76  111.,  167. 

The  court  instructs  the  jury,  that  to  charge  a  person  with 
notice,  on  the  ground  that  he  had  knowledge  of  such  facts  as 
ought  to  have  put  him  upon  inquiry,  it  must  appear,  from  the 
evidence,  that  the  information  he  had  received  was  of  that  char- 
acter that  it  was  calculated  to  excite  the  attention  of  an  ordi- 


330  INSTRUCTIONS 

luirilv  prudent  persioii,  and  that  such  person,  by  the  exercise  of 
reasonable  and  ordinary  diligence,  could,  upon  inquiry  and 
investigation,  arrive  at  the  knowledge  of  the  fact  with  which  he 
is  sought  to  he  charged.     City  of  Chicago  vs.  Witt,  75  111.,  211. 

Kooitals  in  IK'od. — The  jury  are  further  instructed,  that  the 
recitals  in  a  deed  in  the  chain  of  title,  under  which  a  person 
claims,  are  such  notice  to  a  purchaser  of  the  property  as  will 
put  him  on  inquiry  as  to  the  nature  and  effect  of  the  matter  rc- 
feri-ed  to  in  the  recitals.  C.  cfc  E.  I.  R.  R.  Co.  vs.  Kennedy, 
TO  111.,  350;  Mosle  vs.  Kuhlnian,  40  la.,  108. 

Unrecorded  Deeds. — The  court  instructs  the  jury,  that  a  deed  is 
valid  between  the  parties  without  being  recorded.  The  object 
of  the  recording  law  is  to  furnish  notice  as  to  the  title  to  real 
estate,  and  of  liens  and  incumbrances  thereon;  but  in  default  of 
recording,  if  parties  have  such  notice  in  any  other  form,  all  the 
purposes  of  the  law  are  effected  to  the  same  extent  as  though  the 
deed  were  recorded.     Eussell  vs.  Bauson,  7C  III.,  107. 


PARTNERSHI  P. 

Who  are  Partners— In  Fact. — The  court  instructs  the  jury,  that 
to  constitute  a  partnership  as  to  the  alleged  partners  themselves, 
it  is  only  necessary  that  each  of  them  contributes  either  capital, 
labor,  credit  or  skill  and  care,  or  two  or  more  of  these,  and  that 
all  the  contributions  are  put  together  into  a  common  stt»ck  or 
common  enterprise,  to  be  used  for  the  purpose  of  carrying  on 
business  for  the  connuon  benelit.  Pars,  on  J'art.,  54;  Stoi-v  on 
Part.,  §  2. 

Partnersliip  —  How  Formal. — A  partnership  can  only  exist  as 
between  the  parties  themselves,  in  pursuaiun^  of  an  express  or 
an  implied  agreement,  to  which  the  minds  of  the  parties  liave 
assented;  the  intention,  or  even  belief,  of  one  party  alone  cannot 
create  a  partnership  without  the  assent  of  the  others.  Story  on 
Part.,  §  SO;  Pars,  on  Part.,  0;  Phillips  vs.  Phillips,  49  111., 437. 


IN    CIVIL    ACTIONS. 


331 


As  to  Third  Persons. — The  jury  are  instructed,  that  parties  may 
so  conduct  themselves  as  to  be  liable  to  third  persons  as  part- 
ners, when,  in  fact,  no  partnership  exists  as  between  themselves. 
The  public  are  authorized  to  judge  from  appearances  and  pro- 
fessions, and  are  not  bound  to  know  the  real  facts. 

That  persons  may  be  copartners,  as  to  third  persons,  and 
brought  within  all  the  liability  of  partners,  as  to  third  persons, 
who  are  not  partners  as  between  themselves;  and  they  will  be 
so  regarded  as  to  third  persons,  if  they  voluntarily  and  know- 
ingly so  conduct  themselves  as  to  reasonably  justify  the  public, 
or  persons  dealing  with  them  in  believing  that  they  are  partners. 

Holding  Oneself  Out  as  Partner. — The  court  instructs  the  jury, 
that  if  a  person  voluntarily  and  knowingly  holds  himself  out, 
by  his  acts  or  language,  to  the  public  or  to  third  persons,  as  the 
partner  of  another,  and  a  third  person  deals  with  that  other 
on  the  faith  of  an  existing  partnership,  then  the  person  so  hold- 
ing himself  out  will  be  liable  as  a  partner  to  the  person  so  deal- 
ing, notwithstanding  there  was,  in  fact,  no  such  partnership. 
Pars,  on  Part.,  61;  Smith  vs.  Knight,  71  111.,  118;  Peck  \&. 
Lusl',  38  la.,  93;  Story  on  Part,  §  61. 

If  the  jury  believe,  from  the  evidence,  that  prior  and  up  to 
the  time  of  the  giving  of  the  note,  the  defendant,  A.  E.,  volun- 
tarily and  knowingly  so  conducted  himself,  in  connection  with 
the  business  carried  on  at,  etc.,  as  to  reasonably  justify  the  pub- 
lic, and  persons  generally  dealing  at  that  place,  in  supposing  and 
believing  that  he  was  a  partner  with  said  C,  and  that  the  plain- 
tiffs, before  they  sold  the  goods,  had  been  informed  that  the  said 
A,  E.  was  interested  as.  a  partner  in  that  business,  and  that  at 
the  time  they  sold  the  goods  and  took  the  notes  they  supposed 
and  believed  that  he  was  a  partner,  and  acted  on  that  supposi- 
tion, then  he  would  be  liable  on  the  note  as  a  partner,  whether 
he  was  in  fact  a  partner  or  not. 

If  the  jury  believe,  from  the  evidence,  that  prior  and  up  to 
the  time  of  the  giving  of  the  note  introduced  in  evidence  in 
this  case,  A.  E.  voluntarily  and  knowingly  so  conducted  himself, 
in  connection  with  the  business  of  the  firm  of  F.  &  E.,  as  to 
justify  the  plaintiffs,  and  persons  generally  dealing  with  the  firm, 


332  INSTRUCTIONS 

in  supposing  and  believing  that  he  was  a  member  of  that  firm, 
and  that  the  plaintiffs,  before  they  sold  the  goods  for  which  the 
note  was  given,  had  knowledge  of  these  facts,  and  were  thereliv 
induced  to  believe  that  A.  E.  M'as  a  partner  in  that  fn-m,  and 
that  at  the  time  they  sold  the  goods  and  took  the  note  they  did 
suppose  and  believe  that  lie  was  a  member  of  the  firm,  then  he 
v.'ould  be  liable  on  the  note  as  a  partner,  whether  he  was  in  fact 
a  partner  or  not. 

That  when  pei-sons  hold  themselves  out  to  the  world  by  their 
acts  or  declarations  as  pai-tncrs,  they  will  be  liable  as  such, 
whether  such  relation  really  exists  between  them  or  not.  If 
they  knowingly  permit  their  names  to  appeal-  in  tlie  style  of  the 
firm  in  the  business  cards,  notices  or  advertisements  of  the  firm, 
they  cannot  escape  liability  for  debts  contracted  in  the  name  of 
the  firm.  Ellis  vs.  Bronson,  40  111.,  455;  Barnett^  etc.,  vs. 
Blaclmar,  53  Ga.,  98. 

If  the  jury  believe,  from  the  evidence,  that  prior,  and  up  to 
the  time  the  note  introduced  in  evidence  in  this  case  was  given, 
A.  E.,  voluntarily  and  knowingly,  allowed  and  permitted  the 
business  of  the  firm  of  E.  <Sc  E.  to  be  conducted  in  such  a  way  as 
to  justify  the  public  generally,  and  persons  dealing  with  the 
firm,  in  supposing  and  believing  that  he  was  a  member  of  the 
firm,  and  that  the  plaintiffs,  before  and  at  the  time  they  sold  the 
goods,  and  took  the  note  in  question,  had  reason  to  believe,  and 
did  believe,  from  the  maimer  in  which  the  business  was  con- 
ducted, that  he  was  a  member  of  the  firm,  then  the  plaintiffs 
will  have  a  right  to  hold  him  liable  on  the  note  as  a  member  of 
the  firm. 

And  in  such  a  case,  it  is  immaterial  whether  A.  E.  made  any 
representations  personally  to  the  plaintiff  that  he  M-as  a  member 
of  the  firm  or  not. 

[See  Estoppel.] 

Partnership  in  the  Name  of  one  Partner. — The  court  instructs  the 
jury,  that  although  they  may  l)elieve,  from  the  evidence,  that  the 
])usiness  at  S.  was  carried  on  in  the  name  of  J.  C.  alone,  this 
fact  Would  not  be  conclusive  that  no  partnership  existed.  The 
question  of  23artnership  does  not  dejiend  upon  the  name  of  the 


IN    CIVIL    ACTIONS.  333 

firm,  but  upon  the  agreement  of  the  j^arties  as  to  the  ownersliip 
of  the  property,  and  as  to  the  disposition  to  be  made  of  the 
profits  of  the  business. 

If  the  jury  believe,  from  the  evidence,  that  L.  &  C.  entered 
into  an  agreement,  by  which  they  were  to  engage  in  the  business 
of,  etc.,  and  that  the  business  should  be  carried  on  in  the  name 
of  L.,  witli  money  to  be  furnished  by  C. ;  L.  agreeing  to  con- 
tribute his  time  and  labor  to  the  business,  and  that  the  parties 
should  share  equally  in  the  profits  thereof;  and  if  the  jujy  fur- 
ther believe,  from  the  evidence,  that  the  parties  did  engage  in 
such  business,  under  that  agreement,  then  they  were  partners, 
so  far  as  third  persons  were  concerned. 

Test  of  Partnership— Partners  as  Between  Themselves. — The  court 
further  instructs  the  jury,  that  the  criterion  for  determining 
whether  a  partnership  exists  as  between  the  partners  themselves, 
is  to  ascertain  the  intention  and  understanding  of  the  parties 
themselves,  at  the  time  the  partnership  is  alleged  to  have 
existed.     Pars,  on  Part.,  58. 

And  in  this  case,  if  the  jury  believe,  from  the  evidence,  that 
J.  and  E.,  at  the  time  in  question,  did  not  intend,  or  understand 
that  a  partnership  existed  between  them,  and  there  was  no  agree- 
ment that  they  should  share  the  profits  of  the  said  business  of, 
etc.,  then  as  to  the  matters  involved  in  this  suit,  the  question  of 
partnership  should  have  no  bearing  on  the  mind  of  the  jury,  in 
arriving  at  their  verdict  in  this  case. 

That  the  best  evidence  and  usual  test  of  a  partnership,  is  the 
sharing,  between  the  alleged  partnei-s,  of  the  profits  aud  losses 
of  the  business;  and  if  the  jury  believe,  from  the  evidence,  that 
there  never  was  any  agreement  between  J.  and  E.,  to  share  the 
profits  and  losses  of  the  business  in  question,  then  this  would  be 
evidence,  tending  to  show  that  no  partnership  did,  in  fact,  exist 
between  them. 

Power  of  Partner  to  Bind  the  Fh-m. — Every  partner  possesses  full 
and  absolute  authority  to  bind  all  the  partners,  by  his  acts,  or 
contracts,  in  relation  to  the  business  of  the  firm,  in  the  same 
manner,  and  to  the  same  extent,  as  if  he  held  full  power  of 


334  INSTRUCTIONS 

attorney  from  thorn;  uiid  as  between  the  firm  and  tliird  parties, 
who  deal  with  it,  in  good  faith  and  without  notice,  it  is  a  matter 
of  no  consequence  M'hether  the  partner  is  acting  fairly  witli  Ids 
co-partnei-s,  in  the  transaction,  or  not,  if  he  is  acting  within  the 
ai)j)arent  scope  vi  his  authority,  and  professedly  for  the  firm, 
l^ars.  on  Part.,  172;  Story  on  Part.,  §  101;  Pahlman  vs. 
Tdijhr,  75  111.,  629;  First  JVatl.  Bank  vs.  Carpenter^  41  la., 
518. 

That  if  a  partnership  as  such  engages  in  any  transaction  out- 
side of  its  regular  husiness,  the  acts  and  declarations  of  one 
partner,  if  proved,  with  respect  to  that  transaction,  bind  the 
firm  as  much  as  though  they  were  made  with  respect  to  some 
matter  in  the  course  of  its  ordinary  and  customary  business. 
SaudUands  vs.  Marah^  2  B.  &  Aid.,  673:  Boardnian,  et  al. 
vs.  Adams,  et  al.,  5  la.,  224. 

Wliat  Acts  do  not  Bind— Partner  Using:  Partnersliip  Credit  or  Effocts.— 

The  jury  are  instructed,  that  one  }»artner  has  no  right  Xo  apjily 
the  funds,  or  securities,  or  otlier  effects  of  the  partnership,  in 
payment  of  his  own  private  debts,  without  the  consent  of  his  co- 
partners; and  if  he  does  so,  the  creditor  dealing  with  such  part- 
ner, if  he  knows  the  circumstances,  will  be  deemed  to  have  acted 
in  bad  faith,  and  in  fraud  of  the  other  partners,  and  the  transac- 
tion will  be  void  as  to  them.  Pars,  on  Part.,  Ill;  Story  on 
Part.,  §  132. 

The  jury  are  further  instructed,  that  one  partner  has  no  right 
or  authority  to  use  the  credit  of  the  partnership,  or  to  give  a 
note,  in  the  name  of  the  firm,  for  his  own  debt,  or  in  his  own 
individual  transactions,  without  the  consent  of  his  copartners ; 
and  if  he  does  so,  the  note,  or  security  given  will  be  void  in  the 
hands  of  any  person  who  has  knowledge  of  the  purpose  for 
which,  and  the  circumstances  under  which,  such  note  or  security 
was  given. 

Tlie  jury  are  further  instructed,  that  when  a  note,  or  other 
security,  is  given  in  the  name  of  the  firm,  by  one  partner,  in 
payment  of  his  own  individual  debt,  the  law  raises  a  presump- 
tion that  it  was  done  without  the  knowledge  or  consent  of  the 
other  partners,  and  the  burden  of  proving  such  knowledge  and 


IN    CIVIL    ACTIONS.  335 

consent,  is  upon  the  party  alleging  it.     Story  on  Part.,  §  133: 
Pars,  on  Part.,  112. 

Acts  Beyond  the  Scope  of  Partnership  Business. — The  court  instructs 
the  jury,  that  each  member  of  a  firm  is  presumed  to  have,  and 
has,  authority  to  bind  the  firm  within  the  scope  of  the  partner- 
ship business;  but  in  order  to  bind  the  firm  in  matters  outside 
of  or  beyond  the  apparent  scope  of  the  partnership  business  the 
authority  of  one  partner,  to  act  for  the  firm,  must  be  shown, 
precisely  the  same  as  if  any  other  person  had  performed  the 
act.  McNair  vs.  Piatt,  46  111.,  211;  Boardman,  et  al.  vs. 
Adams,  et  al.,  5  la.,  224. 

Bound  by  Ratification. — The  jury  are  instructed,  that  while  one 
partner  cannot  rightfully  appropriate  partnership  funds  to  the 
payment  of  his  individual  debts,  yet  if  he  does  do  so,  his  acts, 
when  they  come  to  the  knowledge  of  the  other  members  of  the 
firm,  should  be  clearly  and  promptly  repudiated;  and  if,  when 
such  knowledge  comes  to  the  other  members  of  the  firm,  they 
do  not,  within  a  reasonable  time  thereafter,  repudiate  the  trans- 
action, they  will  be  deemed  to  have  ratified  it,  and  will  be 
bound  to  the  same  extent  as  though  they  had  expressly  author- 
ized it  in  the  first  instance.  Whether  in  this  case  the  debt  in 
question  was  paid  out  of  partnership  funds  by  the  said  A.  B., 
and  whether  the  other  partners  had  knowledge  of  that  fact,  and 
whether  they  did  repudiate  the  transaction,  and  notify  the  said, 
etc.,  of  that  fact,  as  soon  as  it  could  reasonably  be  done,  are  all 
questions  to  be  determined  by  the  jury,  from  a  consideration  of 
all  the  evidence  in  the  case.  Pars,  on  Part.,  Ill;  Marine  Co., 
etc.,  vs.  Carver,  42  111.,  (r>(S. 

[See  Principal  and  Agent.} 

When  Fraud  of  one  Partner  Binds  the  Otlier. — The  court  instructs 
the  jury,  that  if  a  fraud  is  committed  by  one  partner,  in  the 
name  of  the  firm,  in  the  course  of  the  partnership)  business,  it 
will  bind  the  firm,  even  though  the  other  partners  had  no 
knowledge  of  the  fraud,  or  participation  in  the  transaction  to 
which  it  relates.     Storv  on  Part.,  §  131;  Pars,  on  Part.,  150. 


33G  INSTRUCTIONS 

Notice  of  Dissolution  Necessary,  When. — The  court  instructs  the 
jury,  that  the  law  is,  that  when  a  partnership  is  dissolved,  and 
one  of  the  partners  continues  the  business  as  before,  the  re- 
tirino-  partner,  to  protect  himself  from  future  liabilities,  should 
see  that  public  notice  of  such  dissolution,  or  of  his  retirement,  is 
given  in  some  manner,  so  as  fairly  and  reasonably  to  notify  the 
public  of  the  fact  of  his  withdrawal  from  the  .firm;  and  if  he 
does  not  do  so,  persons  dealing  with  the  partner  who  contiuues 
the  l)usiness,  without  actual  notice  of  the  dissolution,  will  have 
a  right  to  rely  on  the  credit  of  the  original  firm.  Pars,  on  Part., 
410;  Story  on  Part.,  §  65,  100. 

That  when  one  partner  withdraws  from  the  firm,  and  the 
business  is  continued  by  the  other  partners,  the  retiring  partner 
should  see  that  persons  who  have  formerly  dealt  with  the  firm 
have  reasonable  notice  of  such  retirement,  or  else  those  who 
(vontinue  to  deal  with  the  firm,  without  actual  notice  of  his  with- 
drawal, can  hold  him  liable  as  a  member  of  the  firm. 

Cannot  Sue  Each  Other  at  Law. — The  court  instructs  the  jui-y,  that 
under  our  practice,  one  partner  cannot  maintain  an  action  at 
law  against  his  copartner  for  woi-k  and  labor  performed,  or  for 
money  paid,  laid  out,  or  expended  for,  or  on  account  of,  the 
partnership,  nor  for  the  use  or  occupation  of  any  of  the  partner- 
ship property. 

If  the  jury  believe,  from  the  evidence,  that  the  plaintiff  and 
defendant  were  copartners  during  any  portion  of  the  time 
covered  by  the  accounts  in  question,  tlu'u  the  jury  should 
excbide  from  their  consideration,  all  items  of  account  concern- 
ing, or  growing  out  of,  the  partnei-ship  business,  if  any  such  have 
l)een  proved. 

If  the  jury  believe,  from  the  evidence,  that  the  plaintiff  and 
defendant  were  partners  as  to  a  portion  of  the  plaintiff's  claim, 
and  not  partners  as  to  the  residue,  then  the  fact  of  partnership 
will  in  nowise  interfere  with  the  plaintiff's  right  to  recover  as  to 
such  residue. 

If  the  jury  believe,  from  the  evidence,  that  the  parties  to  this 
^uit,  at  the  time  in  question,  were  partners,  as  to  the  said,  etc.,  and 
in  the  use  thereof,  and  that  the  charges  in  plaintiff's  bill  of  par- 


IN    CIVIL    ACTIONS.  337 

ticulars  in  relation  to  said,  etc.,  and  to  the  use  thereof,  are 
matters  pertaining  to  the  said  partnership,  and  growing  out  of 
the  same,  and  have  never  been  settled  or  adjusted  between  the 
parties,  then  such  matters  cannot  be  litigated  in  this  suit,  and 
the  jury  should  disregard  all  such  items  in  making  up  their 
verdict. 

When  Maj  Sue  at  Law. — Although  the  jury  may  believe,  from 
the  evidence,  that  the  plaintiff  and  defendant  were  formerly 
partners,  and  that  the  account  sued  on  grew  out  of  their  partner- 
ship business,  and  is  claimed  by  the  plaintiff  as  the  balance  due 
to  him,  upon  a  settlement  of  such  business;  still,  if  the  jury 
further  believe,  from  the  evidence,  that  the  partnership  had  been 
dissolved,  and  the  partnership  business  settled  between  the 
parties,  and  a  balance  struck  and  agreed  upon  as  the  amount 
due  to  the  plaintiff,  before  the  commencement  of  this  suit,  then 
the  plaintiff  can  maintain  a  suit  for  such  balan(;e.  Wycoff  vs. 
Pariiell,  10  la.,  332;  Ridgway  v^.  Grant,  17  111.,  117. 


PRINCIPAL  AND  AGENT. 

General  Instructions  of  Principal. — The  jury  are  instructed,  that 
where  the  directions  of  the  principal  to  his  agent  are  general  as 
to  the  business  which  he  is  intended  to  perform,  then  the  prin- 
cipal is  held  to  have  confided  in  the  discretion  of  his  agent,  and 
he  will  be  answerable  for  all  the  acts  of  the  agent  in  the  per- 
formance of  the  duty  required. 

Departure  from  Business  of  Principal. — The  jury  are  instructed, 
that  if  the  directions  of  the  principal  to  his  agent  are  specific  to 
do  some  specific  thing,  and  the  servant  disregards  his  specific 
instructions,  and  goes  about  doing  something  else,  not  reasonably 
wnthin  the  scope  of  the  authority  given,  the  master  will  not  be 
liable  for  such  acts  of  the  servant,  unless  they  are  afterwards 
ratified  by  him. 

Agency  Presumed  to  Continue,  Wlien.- — The  jury  are  instructed, 
that  it  is  a  rule  of  law  that  when  a  person  is  shown  to  have  been 

22 


338  INSTRUCTIONS 

an  agent  of  another  in  a  particular  business,  and  continues  to  act 
as  such  agent,  within  the  scope  of  his  former  authority,  it  will 
be  prcsunicd  that  his  authority  continues,  and  his  acts  will  bind 
his  principal,  unless  the  person  with  whom  he  deals  has  notice 
that  his  agency  has  ceased,  or  until  after  the  lapse  of  such  a 
length  of  time  as  ought  to  put  a  reasonably  prudent  man  on  en- 
cpiiry  as  to  the  continuance  of  such  agency.  Barldey  vs.  Eenssa- 
laer,  etc.  Co.,  71  N.  Y.,  205;  Packer  vs.  IlhiJdeij,  etc.,  122 
Mass.,  484;  Murphy  vs.  Ottenheimer,  84  111.,  39;  Howe,  etc., 
vs.  L'uider,  59  Ind.,  307;  Summerville  vs.  Ilan.  (&  St.  Joe  Rd. 
Co.,  02  Mo.,  391. 

The  jury  are  instructed,  that  a  principal  is  l)()und  by  the  acts 
of  his  agent  only  so  far  as  those  acts  are  specially  authorized  by 
the  principal,  or  are  within  the  scope  of  the  agent's  apparent 
authority ;  unless  such  acts  are  afterwards  ratified  l)y  the  principal. 

Warranly  Within  tlie  Apparent  Scope  of,  Etc. — The  court  further  in- 
structs the  jury,  that  while  it  is  true  that  the  principal  is  not 
bound  bv  the  unauthorized  acts  of  his  agent,  when  such  acts  are 
beyond  the  scope  of  the  agent's  apparent  authority,  yet  the  prin- 
cipal is  bound  by  a  warranty,  made  by  an  agent,  of  the  quality 
of  an  article  sold  by  the  agent,  when  the  buyer  is  justified,  from 
the  nature  of  the  business  and  the  manner  of  doing  it,  in  believ- 
ing that  the  authority  to  make  the  warranty  had  been  given,  and 
the  buyer  had  no  means  of  knowing  the  limitation  of  the  agent's 
authority.  1  Parsons  on  Cont.,  52;  Murray  vs.  Brooks,  41 
la.,  45. 

The  jury  are  instructed,  that  it  is  a  rule  cf  law  that  a  person 
dealing  with  one  known  to  be  an  agent,  or  claiming  to  be  such, 
is  bound,  at  his  peril,  to  see  that  the  agent  has  authority  to  bind 
his  j.rincipal  in  such  transaction,  or  that  the  agent  is  acting 
within  the  scope  of  his  apparent  authority.  Peabody  vs.  Ilord, 
46  111.,  242. 

Pnblic  Officer. — The  jury  are  instructed,  that  it  is  a  general  rule 
that  if  a  special  agent,  whose  authority  is  conferred  by  statute  or 
l)y  orders  of  court,  or  one  acting  in  the  capacity  of  a  public 
officer,  acts  outside  of  the  authority  conferred,  the  princijial  will 
not  be  bound  by  his  acts.     iJart  vs.  Jlercides,  57  111.,  446. 


IN    CIVIL    ACTIONS.  339 

In  Case  of  Torts. — The  jury  are  instructed,  that  if  a  tort  or 
wrong  is  committed  by  an  agent,  in  the  course  of  his  eniph.)y- 
ment  wliile  pursuing  the  business  of  his  principal,  and  it  is  not 
a  M^lful  dejiarture  from  such  employment  and  business,  the 
princijDal  will  be  liable  for  the  act,  although  it  is  done  without 
his  knowledge.  Noble  vs.  Cunningham,  Y4:  111.,  51;  Cooley  on 
Torts,  533;  Hamilton  vs.  Third  Ave.  Rd.  Co.,  53  N.  Y.,  25. 

Goods  Furuislied  Minor  Child. — The  court  instructs  the  jury,  as  a 
matter  of  law,  that  if  a  father  permits  his  minor  child  to  pur- 
chase goods  on  his  account,  and  the  father  pays  for  them  with- 
out objection,  this  will  afford  a  presumption  of  agency  with  full 
power  to  make  like  purchases  in  the  future. 

The  jury  are  instructed,  that  either  an  express  promise,  or 
circumstances  from  which  a  promise  may  be  inferred,  must  be 
proved,  by  a  preponderance  of  the  evidence,  before  the  father 
can  be  made  liable  for  goods  sold  and  delivered  to  his  minor 
child.  Gotts  vs.  Clark,  78  111.,  229;  Foiolhes  vs.  Baler,  27 
Tex.,  135;  Schouler's  Domestic  Rela.,  329;  Swain  vs.  Tyler, 
26  Vt.,  9;   Thayer  vs.   White,  12  Met.,  343. 

The  jury  are  instructed,  that  either  an  express  promise,  or 
circumstances  from  wlii(;h  a  promise  by  the  father  may  be  in- 
ferred, is  essential,  in  all  cases,  to  bind  him  for  necessaries  fur- 
nished his  infant  child  by  a  third  person.  Where  the  father 
and  mother  separate  by  mutual  consent,  and  the  father  permits 
the  mother  to  take  the  children  with  her,  then  the  father  consti- 
tutes the  mother  his  agent  to  provide  for  his  children,  and  he  is 
bound  by  her  contracts  for  necessaries  furnished  for  them. 
McMillan  vs.  Lee,  78  111.,  443. 

Gfoods  Furnished  the  Wife. — The  jury  are  instructed,  that  where 
goods,  necessary  and  suitable  to  the  position  in  life  of  a  wife 
living  with  her  husband,  are  sold  ta  her  on  the  credit  of  her 
husband,  and  charged  to  him,  a  jury  will  be  justified  in  finding 
that  the  wife  was  the  agent  of  her  husband  to  make  the  pur- 
chases; and  in  this  case,  if  the  jury  believe,  from  the  evidence, 
that  the  goods,  for  the  price  of  which  this  suit  is  brought,  were 
furnished  to  the  defendant's  wife  while  she  was  residing  with 
liira,  and  that  tlicy  were  necessary  and  suitable  to  the  position  in 


340  INSTRUCTIONS 

life  of  the  wife,  then  the  defendant  is  liable  to  pay  for  the  same; 
unless  the  jury  further  believe,  from  the  evidence,  that  the 
defendant  had  forbidden  the  plaintiff  selling  goods  to  his  wife 
on  credit.     1  Pars,  on  Cont.,  287;  Schouler's  Dom.  Rela.,  77. 

The  jury  are  instructed,  as  a  matter  of  law,  that  if  a  husband 
ueo-leets  to  furnish  his  wife,  while  living  witli  him,  with  all 
articles  of  necessity,  suitable  to  his  condition  in  life,  then  the 
wife  may  procure  them  of  others,  and  the  husband  will  be  liable 
to  pay  for  the  same. 

In  Case  of  Desertion  by  Wife. — The  jury  are  instructed,  as  a  matter 
of  law,  that  if  a  wife  deserts  her  husl)and  without  sufficient 
cause,  as  explained  in  these  instructions,  or  renuiins  sci)arate 
from  him  without  his  consent,  and  without  good  and  sufficient 
cause,  lie  will  not  be  liable  for  necessaries  purchased  by  her. 
Oinson  vs.  Heritage,  45  Ind.,  73. 

The  jury  are  further  instructed,  that  if  they  believe,  from  the 
evidence,  that  the  plaintiff  sold  the  goods  sued  for,  to  the  defend- 
ant's wife,  while  she  was  living  separate  and  apart  from  her 
husband,  without  his  consent,  then  to  entitle  the  plaintiff  to 
recover  in  this  suit  he  must  prove,  by  a  preponderaiu;e  of  evi- 
dence, that  the  wife  had  just  and  legal  reason  to  live  separate 
from  her  husband,  as  explained  in  these  instructions.  Bea  vs. 
Durkee,  25  III,  5(i4. 

If  the  jury  believe,  from  the  evidence,  that  the  merchandise 
for  which  this  action  is  brought,  was  sold  by  plaintiff  to  defend- 
ant's wife,  and  that  at  that  time  she  M'as  living  apart  from  her 
husband,  and  that  the  plaintiff  was  knowing  to  that  fact,  iheu  to 
entitle  the  plaintiff  to  recover,  the  burden  of  proof  is  on  the 
])laintiff  to  show,  hy  a  preponderance  of  evidence,  that  the  wife 
was  living  apart  from  her  husband,  witli  his  consent,  or  that  the 
wife  was  justitied  in  leaving  her  husband  on  account  of  his  cruel 
ti'eatmcnt,  or  that  his  conduct  was  so  violent  as  to  lead  her  to 
reasonably  fear  personal  \ii>UMice,  or  on  account  of  some  other 
fault  of  the  husband,  which  rendered  it  improper  for  her  to  live 
and  cohabit  with  him.     liea  vs.  Durhcc,  25  111.,  503. 

The  jury  are  instructed,  that  a  husl^and  i-;  not  bound  by  law 
to  support  his   wife,  or   even   to  furnish   her  with   necessaries, 


IN    CIVIL    ACTIONS.  341 

while  she  is  living  separate  and  apart  from  him,  if  she  so  lives, 
without  his  consent,  and  without  any  good  or  sufficient  reason  or 
cause  therefor,  as  explained  in  these  instructions. 

And  in  this  case,  though  the  jury  may  believe,  from  the  evi- 
dence, that  the  goods  in  question  were  furnished  by  the  plaintiff 
to  the  wife  of  the  defendant,  as  claimed,  and  that  the  goods  were 
necessaries,  and  suitable  and  proper  to  a  person  in  her  condition 
and  station  in  life,  still,  if  the  jury  further  believe,  from  the 
evidence,  that  when  the  goods  were  furnished  to  Mrs.  "A.",  she 
was  living  separate  and  apart  from  her  husband,  without  his 
consent,  and  without  any  good  or  sufficient  cause  therefor,  as 
explained  in  these  instructions,  then  the  defendant  is  not  liable 
to  pay  for  the  goods  so  furnished,  simply  from  the  relationship 
of  husband  and  wife  between  himself  and  Mrs.  "A."  Schouler's 
Dom.  Rela.,  90. 

[For  Good  and  Sufficient  Cause  of  Desertion,  See  Divorce.] 

Ratification  of  Agent's  Acts. — The  law  is,  that  where  a  person's 
name  is  signed  to  a  promissory  note  without  his  authority,  he 
may  afterwards  ratify  its  execution  and  acknowledge  its  binding 
validity  upon  him,  and  if  he  does  this  his  relation  to  the  note 
will  be  precisely  the  same  as  if  he  had  executed  it  personally. 
Paul  vs.  Berry,  78  111.,  158;  Eadie  vs.  Ashbaugh^l^  la.,  519. 

The  jury  are  instructed,  that  a  principal  who,  with  the  full 
knowledge  of  all  the  material  facts  affecting  his  rights,  receives 
the  benefits  of  an  unauthorized  agreement,  made  for  him  by  one 
purporting  to  be  his  agent,  is  precluded  thereby  from  question- 
ing the  agent's  autliority  in  the  transaction.  Pike  vs.  Douglass, 
28  Ark.,  59. 

The  jury  are  further  instructed,  that  a  principal,  when  fully 
informed  of  his  agent's  acts,  must  dissent  f  roui  them  in  a  reason- 
able time,  or  he  will  be  held  to  have  ratified  them.  And  in 
this  case,  if  the  jury  believe,  from  the  evidence,  that  defendant 
received  full  information  of  the  acts  of  the  said  A.  B.  in  the 
premises,  on  or  before,  etc.,  and  remained  silent  and  inactive 
until,  etc.,  then  that  was  not  a  reasonable  time  in  which  to  dissent 
from  the  acts  of  the  said  A.  B.  Meyer  vs.  Morgan,  51  Miss., 
21;  Hawkins  vs.  Lange,  22  Minn.,  557. 


34:2  INSTRUCTIONS 

The  jury  are  instructed,  that  although  the  jui-v  may  l)ellGve, 
from  the  evidence,  that  the  said  A.  B.  was  not  authorized  to 
make  a  hargain  wh\\  the  phiintiff  for  the  defendant,  in  rehxtiou 
to,  etc.,  yet  if  tlie  jury  believe,  from  the  evidence,  that  the  said 
A.  B,  did  make  the  contract  for  the  defendant,  as  alleged  and 
claimed  by  the  plaintiff,  and  that  the  defendant,  with  full 
knowledge  of  what  had  been  done,  ratified  the  bargain  so  made, 
then  the  contract  will  be  as  binding  upon  the  defendant  as  if  lie 
had  authorized  the  said  A.  B,  to  make  the  bargain  in  the  first 
instance. 

Ratification  Must  be  With  Full  Knowledge. — The  jury  arc  instructed, 
that  before  a  person  can  be  bound  by  the  ratification  of  an  act, 
(lone  on  his  behalf  by  one  professing  to  act  as  his  agent,  it  must 
apjiear,  by  a  preponderance  of  the  evidence,  that  he  was  fully 
informed  of  all  the  material  facts  affecting  his  rights  in  the  trans- 
action, and  unless  it  does  so  appear,  he  will  not  be  bound  by  an 
unauthorized  act,  upon  the  ground  of  ratification  alone.  Jferr 
vs.  S/utrj),  83  111.,  109;  Bannon  vs.   Warfield,  42  Md.,  22. 

That  when  the  act  of  ratifying  the  act  of  the  agent  is  claimed 
to  be  implied,  from  a  knowledge  of  the  facts,  by  the  principal, 
it  must  appear,  l)y  a  j)ivpondcrance  of  the  evidence,  that  the 
principal  had  full  knowledge  of  all  the  facts  affecting  his  inter- 
ests in  the  transaction.     Farioell  vs.  Meyer,  35  111.,  40. 

Ratification  Witliout  Full  Knowledge. —  The  coui't  instructs  the 
jury,  that  it  is  a  rule  of  law,  that  where  an  alleged  principal 
does  anything  tcnvards  ratifying  an  act  done  in  his  behalf  by  an 
unauthorized  person,  and  the  acts  of  ratification  are  done  in 
ignorance  of, or  under  a  mistake  of,  any  of  the  material  facts  affect- 
ing the  interests  of  the  |)rincipal,  then  the  act  of  ratification 
will  not  be  binding  on  the  })rincipal.  Miller  vs.  Board  of\etG.y 
-14  Cab,  100 

Ratification  Cannot  be  as  to  a  Part  Only. — The  jury  are  instructed, 
as  a  mattci-  of  law,  that  if  a  person  adopts  a  contract  made  on 
Ids  behalf  liy  an  agent,  who  had  no  authority  to  make  it,  he 
must  adopt  it  in  its  entirety;  he  caimot  adopt  it  in  part  and 
repudiate  it   in  part.     Southern  Ej'J).  Co.  vs.  Palmer,  48  Ga., 


IN    CIVIL    ACTIONS.  343 

85 ;  Wldner  vs.  Lane,  14  Mich.,  124;  Henderson  vs.  Cummings, 
44  111.,  325;  Kreder  vs.  Trustees,  etc.,  31  la.,  547;  MenJdns 
vs.  ^Vatson,  27  Mo.,  163;  Saveland  vs.  Green,  40  Wis.,  431. 

Perinitting  One  to  Hold  Himself  Out. — If  the  jury  believe,  from 
the  evidence,  that  at  the  time  the  contract  in  question  is  alleged 
to  have  been  made,  the  defendants  knew  that  the  said  A.  B.  M^as 
doing  business  and  buying  stock  in  their  names,  as  their  agent, 
and  made  no  objection  to  his  so  doing,  then  the  defendants 
would  be  bound  by  any  contract  within  the  apparent  scope  of 
such  business,  and  no  secret  arrangement  between  the  defend- 
ants and  the  said  A.  B.  would  be  binding  on  the  plaintiff,  unless 
he  had  notice  of  the  same. 

The  jury  are  instructed,  that  if  a  person  knowingly  and  volun- 
tarily permit  another  to  hold  himself  out  to  the  world  as  his 
agent,  he  will  be  held  to  adopt  his  acts,  and  be  bound,  as  principal, 
t^)  the  person  who  gives  credit  to  the  one  acting  as  such  agent. 
Thurher  vs.  Anderson,  88  111.,  167. 

If  the  j  iiry  l)elieve,  from  the  evidence,  that  in  the  summer  of, 
etc.,  the  defendants  knew  that  A.  B.  was  acting  as  their  asent, 
buying  stock  in  their  names,  and  voluntarily  permitted  him  to 
do  so;  and  the  jury  further  believe,  from  the  evidence,  that  the 
said  A.  B.,  while  so  acting,  made  the  contract  alleged  in  plain- 
tiff's declaration,  then  the  defendants  would  be  bound  thereby, 
whether  the  said  A.  B.  was,  in  fact,  their  agent  at  that  time  or 
not. 

[See  Estoppel.] 

Agent  Personally  Liable. — If  the  jury  believe,  from  the  evidence, 
that  the  defendant  employed  the  plaintiff  to  do  the  work  in 
question,  and  that  the  plaintiff  did  the  work  under  such  con- 
tract, and  also  that  the  defendant  was  then  acting  as  the  agent 
of  another  in  procuring  said  work  to  be  done,  still,  if  the  jury 
further  believe,  from  the  evidence,  that  when  the  plaintiff  was 
so  hired  to  do  the  work,  the  defendant  did  not  disclose  the  fact 
that  he  was  acting  as  such  agent,  and  the  plaintiff  then  had  no 
notice  or  knowledge  of  such  agency,  then  the  defendant  will  be 
liable  to  pay  the  plaintiff  for  such  labor. 


344  INSTRVCTIONS 

Notice  to  an  Affent  Binding,  When. — The  jiirv  arc  instructed,  tluit 
notice  to  an  agent  of  any  fact  concerning  the  matters  of  liis 
agency,  is  the  same  as  notice  to  the  principal.  The  hwv  \n-v- 
snmes  tliat  an  agent  transmits,  or,  in  some  manner,  communi- 
cates, to  his  ]>rin(npal  all  infornuition  received  by  him  relating 
to  the  nuittcr  of  his  agency 

Notice  to  Af?ent  not  Binding:,  When. — The  jury  are  instructed,  that 
a  party  is  not  chargeable  with  notice  of  facts  within  the  knowl- 
edge of  liis  agent  or  attorney-,  where  the  agent  or  attorney 
acquires  such  knowledge  wliile  acting  as  the  agent  or  attorney 
of  another  person.     Harrington  vs.  MoCoUum,  73  111.,  476. 

[See  Notice.] 

Good  Faith  Required  of  the  Aarent. — The  court  instructs  the  jury, 
as  a  matter  of  law,  that  if  an  agent  makes  any  profit,  in  the 
course  of  his  agency,  b}'  any  concealed  management,  in  either 
buying  or  selling,  or  other  transaction,  on  account  of  the  pi-in- 
cipal,  the  profits  will  belong  exclusively  to  the  principal.  Cot- 
toin  vs.  Jlolliday,  59  111.,  17(5. 

If  the  jury  believe,  from  the  evidence,  that  the  defendant, 
A.  B.,  was  the  agent  of  the  plaintiff  in  making  the  purchase  of 
the  {land)  in  question,  and  that  as  such  agent  he  purchased  the 
{land)  for  {twelve)  dollars  per  acre,  for  plaintiff,  and  charged 
the  plaintiff  {ffteen)  dollars  per  acre,  representing  to  the  plain- 
tift'  that  he  was  compelled  to  pay  that  price  for  the  (land),  and 
received  that  amount  of  money  from  the  plaiutiif  on  that  ac- 
count, and  that  the  plaintiff,  when  he  paid  the  money,  was 
ignorant  of  the  price  actually  paid  by  defendant,  then  the 
plaintiff  is  entitled  to  a  verdict  for  the  difference  between  the 
price  of  the  {land)  at  {tioelve)  dollars  per  acre  and  its  price  at 
{jlfteeii)  dollars  per  acre,  and  interest  on  that  sum  at  {six)  per 
cent,  per  annum,  from  the  time  the  money  was  so  paid  by  the 

plaintiff. 

\Sce  FactovH  and  Covimisaion  Men.] 

Corporations  only  Act  by  Aprents. — The  court  instructs  the  jury,  that 
corporations  can  only  act  or  contract  by  their  officers  or  agents, 
and   when  a  (;orporation  holds  certain  persons  out  to  the  })ublic 


IN    CIVIL    ACTIONS. 


345 


as  authorized  to  act  on  its  behalf,  then  the  corporation,  like  an 
individual,  will  be  bound  by  all  the  acts  and  contracts  of  such 
persons,  which  are  done  or  made  within  the  apparent  scope  of 
their  said  agency. 

And  if  the  jury  believe,  from  the  evidence  in  this  case,  that 
the  defendant  corporation  appointed  F.,  B.  and  H.  as  a  building 
committee,  or  voluntarily  and  knowingly  held  them,  or  any  of 
them,  out  to  the  public  as  such  building  committee,  and  as 
authorized  to  act  and  make  contracts  on  its  behalf,  in  relation 
to  doing  the  work  in  question  in  this  case,  and  that  they  did 
make  the  contract  with  the  plaintiff  for  doing  the  work  in  ques- 
tion, then  the  corporation  will  be  bound  by  the  terms  of  such 
contract. 

Corporation  May  Ratify  Unauthorized  Acts. — A  corporation,  like 
an  individual,  may  be  bound  by  the  acts  of  one  assuming  to  act 
as  its  agent,  if  it  ratify  the  acts  of  the  person  so  professing  to 
act  as  agent. 

Although  the  jury  may  believe,  from  the  evidence,  that  the 
plaintiff  performed  the  services  in  question,  for  the  defendant, 
at  the  request  of  some  officer  or  member  of  the  corporation  not 
previously  authorized  to  contract  in  reference  thereto,  still,  if 
the  jury  further  believe,  from  the  evidence,  that  the  work  in 
question  was  prosecuted  with  the  knowledge  and  consent  of  the 
officers  and  agents  of  the  corporation  having  charge  and  control 
of  its  property  and  affairs,  and  that  the  corporation  accepted 
and  held  the  benefits  arising  from  such  labor  and  services,  then, 
as  a  matter  of  law,  the  corporation  will  be  held  to  have  ratified 
the  acts  of  such  unauthorized  person,  and  it  will  be  bound 
thereby. 

Individual  Members  of  Board  Cannot  Act. — The  supervisors  have 
no  power  to  act  individually ;  it  is  only  when  convened  and  act- 
ing together  as  a  board  of  supervisors  that  they  represent  and 
bind  the  county  by  their  acts;  and  the  chairman  of  the  board 
has  no  greater  authority,  in  his  individual  capacity,  than  any 
other  member. 

When  the  officers  or  agents  of  a  public  corporation  have  no 
power  with  respect  to  a  given  matter,  neither  their  acts  nor  their 


340  INSTRUCTIONS 

individual  knowledge  in  respeet  to  the  matter  can,  in  any  way, 
bind  or  affect  such  corporation. 

Individual  members  of  a  corporation  cannot,  unless  author- 
ized, bind  the  body  by  express  promises;  hence  it  follows  that 
a  corporate  engagement  cannot  be  implied  from  their  unsanc- 
tioned conduct  or  their  declarations.  Benton,  vs.  Brd.  of  Swps.^ 
84  111.,  384. 

The  members  of  the  county  court  can  only  bind  their  county, 
ill  matters  of  claims,  when  acting  as  a  court,  and  their  records 
are  the  only  adinissable  evidence  of  their  judicial  acts.  McLaney 
vs.  Co.  of  Marion,  77  111.,  488. 


REPLEVIN. 

Note. — The  common  law  rules  governing  the  action  of  replevin  are  vari- 
ously modified  by  statute  and  by  local  usage,  or  practice,  in  the  different 
states;  but  the  following  instructions  will  be  found  to  be  generally  applicable 
to  the  practice  in  most  of  the  states  : 

NO  PLEA  OF  JUSTIFICATION  FILED. 

When  the  Action  Lies. — The  jury  are  instructed,  that  to  entitle 
the  plaintiff  to  recover  under  the  issues  in  this  case,  it  is  only 
necessary  that  lie  should  prove,  by  a  preponderance  of  the  evi- 
dence, that  he  was  the  owner  of  the  pro23erty  in  question,  and 
entitled  to  the  possession  of  the  same  when  this  suit  was  com- 
menced, and  that  it  had  been  wrongfully  taken  fi-om  his  posses- 
sion l)y  the  defendant,  or  that  it  was  then  wrongfully  detained 
by  him.  Hill,  on  Eem.  for  Torts,  2 ;  Esson  vs.  Tarhell,  9  Gush., 
407;  Eggleston  vs.  Mmuhj,  4  Mich.,  295. 

Ilijjlit  to  Possession  of  Properly  SulTicient. — That  it  is  not  essential 
to  a  recovery  by  the  plaintiff'  in  this  suit,  that  he  should  have 
been  at  any  time  the  absolute  owner  of  the  property;  it  is  suf- 
"^"cient  if  the  proof  shows,  that  before  and  at  the  time  of  the 
c<jmn)encement  of  this  suit,  the  plaintiff'  was  entitled  to  the 
possession  of  the  property;  that  he  deniandcil  the  same  of  the 
defendant,  before  commencing  the  suit,  and  after  the  plaintiff 


IN    CIVIL    ACTIONS.  347 

became  entitled  to  such  possession,  and  that  the  defendant  re- 
fused to  surrender  the  property  to  the  plaintiff  upon  such  de- 
mand. Camjpbell  vs.  Williams,  39  la.,  640;  Hill,  on  Rem.  for 
Torts,  20;  Noble  y^.  Ejpperly,'^  Ind.,  414;  Loomis  vs.  Youle, 
1  Minn.,  175. 

The  jury  are  instructed,  that  it  is  not  necessary,  in  order  to 
support  this  action,  as  regards  the  issue  of  wrongful  detention, 
that  there  should  have  been  a  wrongful  taking  of  the  property 
by  the  defendant;  provided  the  jury  believe,  from  the  evidence, 
that  the  defendant  had  the  same  in  his  jDossession  when  this  suit 
was  commenced,  and  then  wrongfully  detained  the  same  after  a 
demand  by  the  plaintiff  for  the  possession  thereof. 

If  the  jury  believe,  from  the  evidence,  that  at  the  time  this 
suit  was  commenced,  the  plaintiff  was  lawfully  entitled  to  the 
immediate  possession  of  the  property  described  in  the  decla- 
ration, and  that  the  defendant  had  the  same  in  his  possession, 
and  that  before  the  suit  was  commenced,  and  while  the  plaintiff 
was  so  entitled  to  such  possession,  there  was  a  demand  made  for 
the  property  by  the  plaintiff,  and  a  refusal  to  deliver  the  same 
])y  the  defendant,  then  the  jury  should  find  for  the  plaintiff, 
upon  the  issue  of  wrongful  detention. 

That,  in  this  action,  the  title  or  ownership  of  the  property  is 
not  necessarily  involved.  If  the  jury  believe,  from  the  evidence, 
that  the  defendant  had  the  property  in  his  possession,  and  that 
the  plaintiff  made  a  demand  on  liim  for  it  before  commencing 
this  suit,  then  the  party  who  was  entitled  to  the  possession  of  the 
property  at  that  time,  is  the  one  entitled  to  your  verdict  in  this 
case,  as  regards  the  issue  of  wrongful  detention. 

Burden  of  Proof— What  Must  be  Proved. — The  jury  are  instructed, 
that  before  the  plaintiff  can  recover  in  this  action  he  must  prove, 
by  a  preponderance  of  evidence,  that  at  the  time  of  the  com- 
mencement of  this  suit  he  was  the  owner  of  the  property  in 
question,  or  that  he  was  then  entitled  to  the  immediate  posses- 
sion of  the  same,  and  he  must  also  further  prove,  by  a  prepon- 
derance of  the  evidence,  that  the  defendant  wrongfully  took  the 
property  in  question,  or  else  that  he  wrongfully  detained  it  from 
the  plaintiff,  after  a  demand  made  upon  him,  by  the  plaintiff, 
for  the  jjroperty. 


348  INSTRUCTIONS 

Tlie  jury  are  instructed,  that  in  actions  of  this  kind,  if  there 
is  no  evidence  of  a  wroni^ful  taking  of  the  property,  and  ii<> 
jir(M»f  of  a  demand  of  the  property  before  the  commencement  of 
the  suit,  then  the  plaintiff  is  not  entitled  to  recover,  unless  the 
jury  find,  from  the  evidence,  and  the  instructions  of  the  court, 
that  the  defendant  has,  in  some  other  manner,  manifested  an  in- 
tention to  resist  the  plaintiff's  claim  to  the  property,  or  his  right 
to  the  possession  thereof. 

The  jury  are  instructed,  that  in  this  case  neither  a  wrongful 
taking  nor  a  wrongful  detention  of  the  property  is  to  be  pre- 
sumed without  proof,  but  to  warrant  a  verdict  against  the 
defendant,  his  guilt  must  be  proved,  by  a  preponderance  of  the 
evidence. 

Burden  of  Proof  of  Wronjarful  Detaining. — The  court  instructs  the 
jury,  that  to  entitle  tlie  })laintilf  to  recover  upon  the  issue  of  de- 
tention, it  is  incumbent  upon  the  plaintiff  to  establish,  by  a 
preponderance  of  evidence,  that  the  goods  and  property  replevied 
were  in  the  possession  of  the  defendant,  or  under  his  control, 
and  that  he  detained  the  same  from  the  plaintiff  at  the  time  the 
suit  was  commenced;  and  unless  the  jury  believe,  from  the  evi- 
dence, that  the  property  in  question  was  in  the  possession  of  the 
defendant,  or  subject  to  his  control  at  the  time  the  suit  was 
commenced,  and  that  he  then  detained  the  same  from  the  plain- 
tiff, then,  as  to  the  issue  of  wrongful  detention,  the  jury  should 
find  for  the  defendant.     Reynolds  vs.  McCormick^  62  111.,  412. 

Wrongful  Detention,  How  Proved. — The  court  instructs  the  jury, 
that  if  they  believe,  from  the  evidence,  that  the  plaintiff  was 
entitled  to  the  possession  of  the  property  before  and  at  the  time 
of  the  commencement  of  this  suit,  and  tliat  a  demand  for  the 
possession  was  made  by  the  plaintiff  upon  the  defendant,  and  a 
delivery  of  the  pi-operty  refused  by  him,  while  the  plaintiff  was 
so  entitled  to  possession,  and  before  the  commencement  of  this 
suit,  then  such  demand  and  refusal  are  evidence  of  a  wrongful 
detention;  but  they  are  not  necessarily  the  only  evidence  of  such 
detention;  other  facts  and  circumstances  tending  to  show  such 
detention,  if  proved,  are  proper  evidence  to  be  considered  l)y 
the  jury;  and  if  they  believe,  from  the  evidence,  and  from  such 


IN    CIVIL    ACTIONS.  349 

other  facts  and  circumstances  as  the  jury  find  to  have  been 
proved,  tliat  there  was  a  wrongful  detention  of  the  property,  as 
explained  in  these  instructions,  then  the  proof  of  demand  and 
refusal  was  unnecessary  to  prove  a  wrongful  detention. 

When  Demand  N(>t  Necessary. — If  the  jury  believe,  from  the 
evidence,  under  the  instruction  of  the  court,  that  the  plaintiff 
was  the  owner  of  the  property,  and  entitled  to  the  possession  of 
it,  and  that  the  defendant  took  the  property  wrongfully  from  the 
possession  of  the  plaintiff,  then  a  demand  and  refusal  before  the 
commencement  of  this  suit  is  not  necessary  to  be  proved,  under 
the  issues  in  this  case,  to  entitle  the  plaintiff  to  recover. 

That  when  property  is  wrongfully  taken  from  the  possession 
of  the  party  legally  entitled  thereto,  then  no  demand  for  the 
property  is  necessary  to  enable  the  person  so  entitled  to  the 
possession  to  bring  his  suit  in  replevin.  And  in  this  case,  if  the 
jury  believe,  from  the  evidence,  that  the  plaintiff  was  the  owner 
of  the  {heifer)  in  question,  and  that  defendant  went  to  plaintiff's 
pasture  and  took  the  {heifer)  therefrom  without  plaintiff's  per- 
mission, and  against  his  will,  then  no  demand  was  necessary 
before  commencing  this  suit.  Gilchrist  vs.  Moore,  7  la.,  9; 
Hill,  on  Rem.  for  Torts,  67;  Newman  vs.  Jemie,  47  Me.,  520; 
StiUman  vs.  Squire,  1  Denio,  327. 

The  court  instructs  the  jury,  that  by  his  plea  in  this  case,  the 
defendant  claims  title  to  the  property  in  himself  {and  in  one 
A.  JS.),  and  denies  the  right  of  property  and  of  possession  in  the 
plaintiff;  and  although  the  jury  may  believe,  from  the  evidence, 
that  the  defendant  came  rightfully  into  possession  of  the  prop- 
erty, still,  under  the  pleadings  in  this  case,  it  is  wholly  unneces- 
sary for  the  plaintiff  to  prove  a  demand  and  refusal  before 
commencing  the  suit,  to  entitle  him  to  a  verdict  of  wrongful 
detention;  provided,  the  jury  further  believe,  from  the  evidence, 
under  the  instructions  of  the  court,  that  the  plaintiff  was  entitled 
to  the  possession  of  the  property  at  the  time  of  the  commence- 
ment of  this  suit.  Seaver  vs.  Dingley,  4  Greenlf .,  306 ;  Lewis 
vs.  Masters,  8  Blackf.,  244;  Hill,  on  Rem.  for  Torts,  ^^',  Smith 
vs.  McLean,  24  la.,  322. 

If  the  jury  find,  from  the  evidence,  under  the  instructions  of 
the  court,  that  the  defendant  came  lawfully  into  the  possession 


350  INSTRUCTIONS 

of  the  property  in  controversy,  then  they  will  find  foi-  the 
defendant,  nnless  they  fnrther  find,  from  the  evidence,  tliat  the 
plaintiff,  prior  to  the  coniinenceinent  of  this  suit,  made  a 
demand  npon  the  defendant  for  the  property,  and  that  the  de- 
fendant refused  to  surrender  it  npon  such  demand;  unless 
the  jury  further  find,  from  the  evidence,  that  before  the  com- 
mencement of  this  suit  the  defendant  had  in  some  manner  mani- 
fested an  intention  to  resist  the  plaintiff's  claim  to  the  proj)erty, 
or  to  deny  his  right  to  the  possession  thereof. 

Wlien  Demand  Necessary— Pleas  Xon  Copit  and  Non  Detinuit  Only.— 

If  the  jnry  believe,  from  the  evidence,  that  the  j)i''>P^i"ty  in 
question  came  into  the  possession  of  the  defendant  with  the 
knowledge  and  consent  of  the  plaintiff,  then,  l)efore  the  jilaintiff 
could  properly  commence  this  suit,  he  would  have  to  make  a 
demand  on  the  defendant  for  a  return  of  the  property,  and  nn- 
less it  appears,  from  a  prepondei*ance  of  the  evidence,  that  he 
did  make  such  demand,  the  jury  should  find  for  the  defendant, 
nnless  the  jury  further  believe,  from  the  evidence,  that  the  de- 
fendant, before  the  commencement  of  this  suit,  had,  by  his 
conduct  or  language,  or  by  both,  manifested  an  intention  to 
disregard  and  repudiate  any  claim  of  right  or  title  in  the  prop- 
erty by  the  plaintiff.  Hill,  on  Rem.  for  Torts,  67;  Lewis  vs. 
Masters,  8  Blackf.,  244. 

That  if  the  jury  believe,  from  the  evidence,  that  the  defend- 
ant borrowed  the  property  in  controversy  from  the  plaintiff  for 
a  temporary  use  or  purpose,  giving  the  plaintiff  to  understand 
that  he  would  return  the  property  whenever  the  plaintiff  should 
desire  it,  then  the  plaintiff  would  not  be  entitled  to  connnence 
this  snit  until  after  he  had  first  demanded  the  property  from  the 
defendant ;  and  if  the  plaintiff  has  failed  to  show  such  demand 
and  refusal,  by  a  preponderance  of  evidence,  then  the  jury 
should  find  for  the  defendant ;  provided,  the  jury  further  find, 
from  the  evidence,  that  before  the  commencement  of  this  suit, 
the  defendant  had  done  no  act  inconsistent  with  the  [daintiff's 
right  to  the  property,  or  showing  an  intention  to  repudiate  the 
same. 


IN    CIVIL    ACTIONS. 


351 


Wrongful  Taking-  or  Demand  must  be  Proved. — If  tlie  jury  believe, 
from  the  evidence,  that  at  the  time  this  suit  was  brought,  the 
plaintiff  was  entitled  to  the  possession  of  the  property,  still  he  is 
not  entitled  to  recover  in  this  suit  upon  the  issue  of  wrongful 
detention,  unless  it  appears,  from  the  evidence,  that  the  defend- 
ant wrongfully  took  the  property,  or  unless  the  plaintiff  has 
proved  a  legal  demand  for  the  property  before  this  suit  was 
brought,  or  some  other  facts  and  circumstances  showing  an  un- 
lawful detention  by  the  defendant,  as  explained  in  these  instruc- 
tions. 

What  Essential  to  a  Demand. — In  order  to  make  a  legal  demand 
of  articles  of  personal  j)roperty  by  one  person  from  another, 
such  property  must  be  indicated  by  name  or  by  proper  words  of 
description,  or  reference,  so  as  to  apprise  the  party  upon  whom 
the  demand  is  made  what  particular  property  is  demanded; 
otherwise,  such  demand  would  not  be  sufficient  whereon  to  bring 
replevin  for  the  detention  of  such  property. 
[See  Demand  and  Refusal.] 

PLEA    OF    JUSTIFICATION    FILED. 

Replevin  Against  an  Officer. — The  court  instructs  the  jury,  that 
if  they  believe,  from  the  evidence,  that  the  defendant,  R.,  was  a 
constable  of  this  county  at  the  time  of  the  levy  of  the  execution, 
offered  in  evidence  in  this  case,  and  that  under  such  execution, 
as  such  constable,  he  levied  upon  the  property  in  question  on, 
etc.,  at,  etc.,  and  also  that  the  property  so  levied  upon  was  then 
the  property  of  the  defendant  in  the  execution,  then  the  jury 
should  find  for  the  defendant. 

The  jury  are  instructed,  that  the  justice's  docket,  introduced 
in  evidence  in  this  case,  is  sufficient  evidence  of  the  rendition  of 
the  judgment  mentioned  in  the  plea,  and  the  jury  should  con- 
sider that  fact  as  j)roved. 

Execution  Conclusive  as  to  Thii'd  Person,  or  if  not  Disputed. — That 
the  execution  with  the  indorsement  thereon,  introduced  in  evi- 
dence in  this  case,  is  sufficient  proof  of  the  issuing  of  the  execu- 
tion mentioned  in  the  plea,  the  time  when  the  same  was  received 


352  INSTRUCTIONS 

hv  the  officer,  the  date  of  the  levy,  and  the  sale  of  the  property 
in  question;  and  the  jury  should  consider  all  these  matters 
proved,  as  they  api)car  in  the  execution  and  the  indorsements 
thereon. 

Exociition  and  Indorsements  Prima  Facie  Evidence,  Wlien. — The  jury 
are  instructed,  that  as  regards  the  defendants,  C,  D.  and  E.  {the 
officer  and  'plaintiff fi  in  execution),  the  indorsements  and  return 
of  the  officer  upon  the  cxecntion  read  in  evidence,  are  prima 
facie  proof  of  the  time  when  the  execution  came  into  the  hands 
of  the  officer,  the  time  of  the  levy,  upon  what  property  the  same 
was  levied,  and  what  became  of  the  property.  Hill,  on  Rem. 
for  Torts,  391;  Phillips  vs.  Elwell,  14  Ohio  St.,  240;  Harper 
y&.  Mofft  et  al.,  n  la.,  527. 

Justiflcation  under  Execution  —  When  Demand  Necessary.  The  jury 
are  instructed,  that  if  they  ])elieve,  from  the  evidence,  that  the 
defendant,  A.  B.,  was  an  acting  constable  in  and  for  the  county 
of  C,  and  that  as  such  constable,  the  execution  shown  in  evi- 
dence came  into  his  hands,  to  be  executed  by  him,  and  that 
while  the  property  in  dispute  was  in  the  possession  and  under 
the  control  of  one  or  both  of  the  defendants  in  said  execution, 
the  said  constable  levied  the  execution  upon  the  property  in 
controversv,  such  taking  and  levy  would  not  be  unlawful  as  to 
the  plaintiff,  and  in  such  case,  unless  the  jury  believe,  from  the 
evidence,  that  a  demand  for  the  property  was  made  before 
Ijringing  this  suit,  then  the  defendant  would  not  be  guilty  of  a 
WTonfful  taking,  or  of  a  wrongful  detention. 

Interest  of  Joint  Owner. — One  of  the  questions  before  the  jury 
in  this  case  is  the  ownership  of  the  property  at  the  time  the 
execution  was  placed  in  the  hands  of  the  officer  {or  was  levied 
on  the  property  in  controversy)',  and  if  the  jury  find,  from  the 
evidence,  that  AV.  J.,  the  defendant  i)i  the  execution,  owned  the 
property  levied  on,  or  had  an  interest  therein  as  partner  at  the 
time  of  the  delivery  of  the  execution  to  the  oificer  {or  at  the 
time  the  execution  was  levied  on  the  property),  then  the  prop- 
erty, or  such  interest  therein,  was  subject  to  the  lien  of  such 
execution  and  to  a  sale  under  the  same,  and  the  plaintiff  cannot 
recover. 


IN    CIVIL    ACTIONS  353 

Property  Replevied  from  an  Officer  — Burden  of  Proof. — The  jury 
are  instructed  that  the  burden  of  proof  is  on  the  plaintiff  to 
establish,  by  a  preponderance  of  evidence,  his  right  to  the  pos- 
session of  the  property  in  controversy;  and  if  the  jury  believe,  «  .- 
from  the  evidence,  that  the  plaintiff  has  not  established  his  right 
to  the  possession  of  the  property  at  the  time  of  the  levy,  by  a 
preponderance  of  the  evidence,  the  jury  should  find  for  the 
defendant. 

Plea  of  Property  in  A.  and  B.,  Attachment  Debtors. — The  jury  are 
instructed,  that  if  they  find,  from  the  evidence,  and  under  the 
instructions  of  the  court,  that  at  the  time  the  attachment  writ 
was  levied,  A.  or  B.  had  any  interest  in  the  property  in  ques- 
tion, which  was  subject  to  the  attachment  writ,  as  explained  in 
these  instructions,  then  the  jury  should  find  the  right  of  prop- 
erty in  the  said  A.  and  B.,  or  in  one  of  them,  as  the  case  may 
be,  and  find  the  defendant  not  guilty. 

If  the  jury  find,  from  the  evidence,  under  the  instruction  of 
the  court,  that  neither  A.  nor  B.  had  any  interest  in  the  prop- 
erty, and  further,  that  the  plaintiff  was  the  owner  of,  and  entitled 
to  the  possession  of  the  property  at  the  time  this  suit  was  com- 
menced, then  the  jury  should  find  the  property  in  the  plaintiff, 
and  find  the  defendant  guilty;  provided,  the  jury  further  find, 
from  the  evidence,  that  the  defendant  wrongfully  took,  or 
wrongfully  detained  the  property,  as  charged  in  the  declaration, 
and  as  explained  in  these  instructions. 

Plea,  Property  in  a  Strang-er. — The  court  instructs  the  jury, 
that  the  defendant  in  this  case,  with  his  other  pleas,  has  pleaded 
property  in  himself,  and  also  in  one  A.  B. ;  and  if  the  jury  be- 
lieve, from  the  evidence,  that  the  defendant  has  shown  property 
in  himself,  or  in  the  said  A.  B.,  he  will  be  entitled  to  a  verdict 
from  the  jury,  that  they  find  the  j)roperty  in  the  defendant,  or 
in  the  said  A.  B.,  as  the  fact  may  be  found  by  the  jury. 

Possession  Evidence  of  Title. — The  court  instructs  the  jury,  tnat 
under  the  issues  in  this  case,  the  burden  of  jd roving  property  in 
himself,  so  far  as  the  right  of  property  is  concerned,  is  upon  the 
plaintiff;  and  if  possession  of  the  property  has  been  shown  by 

23 


354  INSTRUCTIONS 

the  evidence  to  liave  been  witli  the  said  A.  B.  at  the  time  it  is 
alleged  to  have  been  levied  upon,  then  such  possession  is  prima 
facie  evidence  of  title  in  the  said  A.  15.  Hill,  on  Pveni.  for 
Torts,  62;  Martin  vs.  Hay,  1  Black.,  291. 

Lien  of  Execution  by  Statute. — The  jurv  are  instructed,  that  the 
execution  read  in  evidence,  was  a  lien  upon  all  the  personal 
property  of  A.  B.,  the  defendant  therein,  from  the  time  the  exe- 
cution came  into  the  hands  of  the  officer,  and  that  no  sale  or 
transfer  of  such  property,  by  the  said  A.  B.,  after  that  time, 
could  destroy  or  affect  such  lien.  And  if  the  jury  believe,  from 
the  evidence,  that  the  alleged  sale  and  delivery  of  the  property, 
bv  A.  B.,  to  the  })laintift",  was  made  after  the  execution  came 
into  the  hands  of  the  officer,  such  sale  would  be  void  as  against 
the  execution  creditors,  no  matter  whether  made  in  good  faith 
and  for  a  valuable  consideration  or  not,  and  the  property  could 
properly  be  taken  on  the  execution. 

Fraudulent  Sale. — If  the  jury  believe,  from  the  evidence,  that 
the  property  in  (piestion  was  sold  to  the  plaintiff  by  the  defendant 
in  the  execution,  before  the  execution  came  into  the  hands  of 
the  officer  {before  the  execution  was  levied,  etc.),  still,  if  the  jury 
further  believe,  from  the  evidence,  that  such  sale  was  made 
to  hinder  or  delay  the  creditors  of  the  said  defendant  in  the  col- 
lection of  their  del)ts,  and  that  the  plaintiff  knew  of  the  purpose 
of  such  sale  and  was  a  party  to  it,  assisting  in  such  fraudulent 
purpose,  then  such  sale  was  void  as  against  the  execution  credit- 
ors, whether  the  plaintiff  paid  a  valuable  consideration  for  the 
property  or  not. 

If  the  jury  believe,  from  the  evidence,  that  the  property  in 
controversy  was  in  the  possession  of  the  plaintiff,  he  claiming  to 
be  the  owner  thereof  at  the  time  it  was  taken  upon  the  execu- 
tion, this  is  prima  facie  evidence  of  ownership  in  him.  And  if' 
the  jurv  furtlier  l)elieve,  fi-oiii  the  evi(U'nce,  that  while  the 
plaintiff  was  so  in  possession  the  defendant  took  tlie  same  from 
him,  then  the  jury  should  find  the  right  of  property  in  the 
plaintiff,  unless  the  jury  further  find,  from  the  evidence,  that 
the  plaintiff   did  not  own  the  property,  or  that  the  sale  thereof 


IN    CIVIL    ACTIONS.  355 

from  C.  to  the  plaintiff,  was  made  with  a  view,  on  the  part  of 
C,  of  hindering,  delaying,  or  defranding  his  creditors,  and  that 
the  plaintiff  knew,  or  had  good  reason  to  know,  of  such  fraudu- 
lent purpose,  at  the  time  he  purchased  the  property. 
[See  Fraud  as  to  Creditors.] 

Temporary  Possession,  by  Vendor. — If  the  jury  believe,  from  the 
evidence,  that  before  the  execution  came  into  the  hands  of  the 
officer  (or  was  levied  upon  the  property),  the  plaintiff  bought  the 
property  from  the  defendant,  in  the  execution,  in  good  faith,  for 
a  valuable  consideration,  and  on  the  same  day  took  actual  pos- 
session of  the  property,  then,  although  the  jury  may  further 
believe,  from  the  evidence,  that  he  afterwards  loaned  the  prop- 
erty back  to  the  defendant  in  the  execution,  for  a  temporary 
purpose,  such  loaning  back,  if  made  in  good  faith,  would  not 
alone  render  or  make  void  the  plaintiff's  title  to  the  property, 
nor  make  it  subject  to  the  execution. 

Growing  Crops  When  Personal  Property. — The  court  instructs  the 
jury,  that  growing  crops,  in  Law,  are  regarded  for  some  purposes 
as  personal  property,  and  for  some  purposes  as  a  part  of  the  real 
estate  upon  which  the  crops  are  growing.  As  between  seller  and 
purchaser  of  real  estate,  they  are  regarded  as  belonging  to  the  real 
estate,  and  will  pass  with  the  conveyance  of  the  land  to  the 
purchaser,  unless  they  are  expressly  reserved  in  writing. 

Levy  on  Crops  and  Taking  Possession. — Although  the  law  requires 
an  officer,  in  levying  on  personal  property,  to  take  the  same  into 
his  possession,  yet,  in  the  case  of  growing  crops,  or  other  bulky 
or  heavy  articles,  it  only  requires  him  to  take  such  possession 
thereof,  as  the  article,  from  its  nature,  will  reasonably  admit  of; 
and  if  the  jury  believe,  from  the  evidence  in  this  case,  that  the 
officer,  in  attempting  to  make  the  levy  in  question,  went  to  the 
fields  of  grain  levied  on,  and  had  the  same  in  his  immediate  view 
and  presence,  and  notified  the  defendant  in  the  execution  that 
lie  had  taken  the  crops,  under  the  execution  introduced  in 
evidence,  this  would  be  a  sufficient  levy  on  the  property  in 
question. 


356  INSTRUCTIONS 

Building  Personal  Property,  When. — The  court  instructs  tlie  jury, 
that  where  a  l)uilding  is  owned  by  one  person,  and  the  hind  on 
which  it  stands  is  owned  by  another,  then  the  building  is  per- 
sonal property;  and  it  will  always  remain  personal  property 
until  the  ownership  of  the  land,  and  that  of  the  building,  unite 
in  the  same  person. 

The  jury  are  insti-ucted,  that  where  one  wrongfully  places  his 
building  upon  the  lot  of  anotlicr,  in  such  a  way  as  to  attach  it  to 
the  ground,  the  Iniilding  will  belong  to  the  owner  of  the  land; 
but  where  one  rightfully  and  lawfully  places  his  building  on 
the  land  of  another,  without  any  intention  of  having  it  belong  to 
the  owner  of  the  land,  then  it  will  not  belong  to  such  owner. 
Cooley  on  Torts,  307;  1  Hill,  on  Torts,  470;  Adams  vs. 
Goddard,  48  Me.,  212;   1  Hill,  on  Eeal  Prop.,  5. 

The  jury  are  further  instructed,  that  where  the  building  of 
one  person  stands  upon  the  land  of  another,  a  purchaser  of  the 
land  will  not  become  the  owner  of  the  building,  unless  the 
owner  of  the  building  has  abandoned  the  possession  of  it,  so 
that  the  purchaser  of  the  land  has  no  notice  of  the  builder's 
rights  in  the  premises. 

The  court  instructs  the  jury,  that,  to  make  a  house  a  part  of 
the  real  estate,  it  is  not  necessary  that  it  should  be  so  affixed  that 
detachiuff  it  will  disturb  the  earth,  or  rend  anv  i)art  of  the 
building.  Where  a  house  is  erected  on  a  lot  by  any  person 
claiming  to  own  the  land,  and  intended  by  him  at  the  time  as  a 
permanent  fixture,  the  house  will  become  a  part  of  the  real 
estate,  no  matter  how  it  may  be  built  upon  the  land. 

If  the  jury  believe,  from  the  evidence,  that  R.  was  the  owner 
of  the  land  on  which  the  l)uilding  in  (juestion  stands,  and  that 
M.,  as  the  tenant  of  II.,  placed  the  building  on  the  land  with 
It.'s  consent,  and  with  the  understanding  or  agreement  with  II. 
that  M.  might  remove  the  same  at  the  expiration  of  his  lease, 
then  the  building  would  be  personal  property,  and  it  would  not 
be  conveyed  by  a  conveyance  of  the  land,  so  long  at  least  as  M. 
r.nd  those  holding  under  him  ccmtinued  in  possession  of  the 
])roperty,  under  the  lease.  Cooley  on  Torts,  306;  Barnes  vs. 
Barnes,  6  Vt.,  3SS;  Smith  vs.  Benson,  1  Hill.,  176. 

The  jury  are  instructed,  that  although  a  building  is  prima 
facie  real  estate,  and  belongs  to  the  owner  of  the  land  on  which 


IN    CIVIL    ACTIONS.  357 

it  stands,  still  it  may  be  personal  property,  and  owned  by  a  per- 
son who  is  not  the  owner  of  the  land ;  and  the  building  is  per- 
sonal property  when  it  is  erected  by  the  builder,  with  his  own 
means,  and  for  his  own  use  on  the  land  of  another,  in  pursuance 
of  an  understanding  between  him  and  the  owner  of  the  land, 
that  the  building  shall  belong  to  the  builder. 

If  the  jury  believe,  from  the  evidence,  that  M.  took  possession 
of  the  land  on  which  the  building  stands,  under  a  lease  from  R., 
Mnth  the  privilege  of  removing  any  improvements  placed  thereon 
by  himself  at  or  before  the  expiration  of  the  lease;  and  further, 
that  M.  continued  to  liold  over  and  occupy  the  premises,  either 
by  himself  or  his  tenant,  after  the  exj^iration  of  the  lease,  with 
the  knowledge  and  consent  of  R.,  then  the  law  would  presume 
that  such  holding  over  was  ujion  the  same  terms  as  to  the  right 
to  remove  improvements,  as  were  contained  in  the  original  lease. 

If  the  jury  believe,  from  the  evidence,  that  before  the  house 
in  question  was  built,  the  plaintiff  and  defendant  entered  into  a 
contract,  by  which  defendant  agreed  to  purchase  the  land  where 
the  house  was  built  from  the  plaintiff,  and,  under  that  contract, 
went  into  possession  of  the  land  and  erected  the  house  thereon, 
with  the  intention  of  having  it  remain  there  as  a  permanent  fix- 
ture to  the  land,  then  the  house,  as  soon  as  it  was  built,  became 
a  part  of  the  real  estate,  and  in  law  belonged  to  the  owner  of 
the  land,  and  any  alleged  contract  authorizing  the  defendant  to 
remove  the  house  therefrom,  would  have  to  be  in  writing  to  be 
binding  on  the  plaintiff.  Crum  vs.  Hill,  40  Iowa,  506;  1  Hill, 
on  Toils,  469;  Graff  y&.  O' Conner,  16  111.,  421. 

Lien  of  Judgment  and  Chattel  Mortgage. — The  jury  are  instructed, 
that  a  judgment  is  not  a  lieu  upon  personal  property  of  the 
debtor;  an  execution  becomes  a  lieu  upon  such  property  from 
the  time  it  is  received  by  the  officer  {or  levied  on  the  property), 
and  not  before. 

If  the  jury  believe,  from  the  evidence,  that  plaintiff's  chattel 
mortgage  was  made  in  good  faith  to  secure  a  bona  fide  indebt- 
edness, and  that  it  was  acknowledged,  entered  upon  the  justice's 
docket,  and  recorded  in  the  recorder's  office,  before  the  execu- 
tion came  into  the  officer's  hands  {<)r  was  levied  on  the  propertij), 


358  INSTRUCTIONS 

then  the  mortgage  will  hold  the  property  in  preference  to  the 
execution. 

If  the  jury  believe,  from  the  evidence,  that  the  plaintiffs  only 
claim  to  the  property  in  (pu'stion  was  derived  from  the  mortgage 
in  evidence,  and  that  the  property  was  allowed  to  remain  in  the 
possession  of  the  mortgagor  after  the  ex})iration  of  the  time  for 
the  payment  of  the  debt  secured  by  said  mortgage,  and  after  a 
reasonable  time  for  the  mortgagee  to  take  possession  of  the 
property,  and  that  while  it  was  so  in  the  possession  of  the  mort- 
("•a-'-or,  the  execution  introduced  in  evidence  was  placed  in  the 
hands  of  the  officer  {or  was  levied  on  the  property)^  then  the 
law  is,  that  the  property  was  liable  to  such  execution.  WJdsler 
vs.  lioherts,  10  111.,  274. 

Trover— Property  Not  Found. — The  jury  are  instructed,  that  if 
they  believe,  from  the  evidence,  that  the  plaintiif  was  the  t)wner 
of  the  property  in  question,  and  entitled  to  the  possession  thereof 
before  and  at  the  time  of  the  commencement  of  this  suit,  and 
that  the  defendant  was  guilty  of  the  wrongful  taking  {or  of  the 
wrongful  detention)  of  the  same,  then,  if  for  any  cause,  the 
2)roperty,  or  any  part  of  it,  was  not  found  or  taken  on  the 
replevin  writ,  the  plaintiff  is  entitled  to  recover  in  tliis  suit  the 
value  of  the  property  not  so  found  or  taken,  and  such  damages, 
if  any  are  proved,  as  the  plaintiff  has  sustained  by  the  wrongful 
taking  and  detention  {or  hy  the  wrongfd  detention)  oi  the  re- 
mainder of  the  proj^erty. 

If  the  jury  believe,  from  the  evidence,  that  either  from  want 
of  title,  or  from  want  of  demand  for  the  possession  of  the  property 
before  suit  was  brought,  the  jdaintiff  had  no  right  to  the  posses- 
sion of  the  property,  as  exphiined  in  these  instructions,  when  the 
replevin  writ  was  issued,  then  he  cannot  recover  for  the  value  of 
the  property  in  controversy  in  this  suit. 

Bailee  Cannot  Deny  bailor's  Title. — The  court  instructs  the  jnry, 
tliat  if  they  Itelievc,  from  the  evidence,  that  the  defendant  bor- 
i-owed  the  property  in  controversy  from  the  plaintiff  for  a  tem- 
porary use  or  purpose,  witli  the  understanding  that  he  would 
rctiini   the  property  wlien   demanded,  and  that  afterwards,  and 


IN    CIVIL    ACTIONS.  359 

before  the  commencement  of  this  suit,  the  plaintiff  made  snch 
deaiaud,  and  that,  upon  snch  demand,  the  defendant  refused  to 
deliver  up  the  possession  of  the  property,  then  the  jury  should 
find  the  right  of  property  in  the  })laintiff,  and  the  defendant 
guilty  of  a  wrongful  detention  of  the  same.  Simpson  vs.  Wreim, 
50  111.,  222. 

The  court  further  instructs  the  jury,  that  if  they  believe,  from 
the  evidence,  that  the  defendant  borrowed  the  property  in  con- 
troversy from  the  plaintiif ,  then  the  defendant  became  the  bailee 
of  the  plaintiff,  and  he  cannot  set  up  title  to  the  property  in 
himself  in  this  action  to  defeat  the  plaintiff's  right  of  recovery ; 
and  if  the  jury  further  believe,  from  the  evidence,  that  before 
the  commencement  of  this  suit,  the  plaintiff  demanded  the  prop- 
ei-ty  from  the  defendant,  and  that  he  refused  to  give  it  up,  claim- 
ing it  as  his  own,  then  the  jury  should  find  the  property  in  the 
plaintiff,  and  the  defendant  guilty  of  a  wrongful  detention. 

STOCK    DISTRAINED. 

Right  to  Distrain  Cattle  Trespassing. — The  court  instructs  the 
jury,  that,  by  the  laws  of  this  state,  if  any  {cattle  or  hogs)  shall 
be  wrongfully  trespassing  upon  the  premises  of  another,  the 
owner  or  occupier  of  such  premises  may  take  such  animals  into 
his  possession,  and  keep  the  same  until  all  damages,  with  rea- 
sonable charges  for  keeping  and  feeding,  are  paid,  or  until  such 
occupier  or  owner  of  the  premises  shall  have  had  reasonable 
time  to  recover  the  same  by  suit  against  the  owner  of  the  stock ; 
provided,  that  within  {twenty-four  hours)  from  the  time  of  taking 
up  said  stock,  the  person  so  taking  them  up  notify  the  owner  that 
he  has  done  so. 

The  jury  are  instructed,  that  at  the  time  and  place  of  the 
committing  of  the  alleged  trespass,  as  complained  of  in  this  suit, 
no  one  was  bound  to  fence  his  land  against  cattle  that  were  per- 
mitted by  the  owner  to  run  at  large  in  the  public  streets  or 
highways;  and  in  such  case,  when  cattle  are  allowed  to  run  at 
large  in  the  public  highway,  the  owner  is  bound  to  take  such 
measures  as  will  prevent  their  escaping  from  the  highway  upon 
the  adjoining  lands  of  others;  and  if  they  do  so  escape,  they  are, 
within  the  meaning  of  the  law  in  this  case,  wrongfully  upon  the 


360  INSTRUCTIONS 

land  of  such  other  person,  whether  such  hinds  are  protected  by 
a  irood  and  sufficient  fence  or  not. 

Tlie  jury  are  instructed,  that  when  the  cattle  of  one  person 
are  wi-on<^fully  trespassing  upon  the  lands  of  another,  as  ex- 
plained in  these  insti-uctions,  the  owner  of  the  land  has  a  right 
to  take  up  such  cattle  while  so  trespassing,  and  to  detain  them 
in  his  possession  to  secure  the  payment  of  the  damages  done,  if 
anv,  together  with  reasonable  charges  for  feeding  and  keeping 
the  same;  and  he  has  {Hoenfi/four  hoiir.s)  in  which  to  notify 
the  owner  that  he  has  taken  them  up. 

If  the  jury  believe,  from  the  evidence,  that  the  cattle  in  ques- 
tion either  escaped  from  the  defendant's  pasture  or  were  per- 
mitted by  him  to  run  at  large  in  the  public  highway,  and  while 
so  upon  the  public  highway,  they  escaped  therefrom,  and  went 
upon  the  jdaintifPs  land  without  his  knowledge  or  consent,  then 
tlu'V  were  wrongfully  upon  such  land,  and  the  owner  had  a 
i-ight,  while  they  were  there,  to  distrain  them,  by  taking  them 
into  his  possession,  and  keeping  the  same  until  all  damages, 
with  reasonable  charges  for  keeping  and  feeding  the  stock,  were 
paid  by  the  owner;  provided,  that  within  {fioenf//-four  hourti) 
from  the  time  of  taking  up  said  stock  he  notified  the  owner  that 
he  had  done  so. 

Must  be  Taken  Damage  Feasant. — The  court  instructs  the  jury, 
that,  to  warrant  the  distraining  of  cattle  dainage  feaxanf,\\\c 
cattle  nuist  be  upon  the  premises  owned  or  occupied  by  the 
party  distraining  at  the  time  they  are  distrained. 

The  fact,  if  proved,  that  cattle  may  have  passed  over  the 
premises  owned  or  occupied  by  a  person,  will  not  warrant  a  dis- 
traint of  the  cattle  after  they  get  on  to  the  pi-emises  of  another. 

The  court  further  instructs  the  jury,  that  the  owner  or  occu- 
pier of  laud  has  no  right  to  distrain  {;attle  found  upon  his  prem- 
ises for  damages  done  at  another  time  than  the  one  when  the 
distraint  is  nuide,  whether  such  damage  was  done  upon  the  same 
or  upon  other  lands  of  the  party  distraining. 

[See  Trespass  by  Domestic  Animals.] 


IN    CIVIL    ACTIONS.  361 

SLANDER. 

NO    PLEA    OF    JUSTIFICATION    FILED. 

Nature  of  the  Action. — The  court  instructs  the  jury,  that  slander 
is  regarded  in  law  as  a  malicious  wrong  and  injury,  and  an  ac- 
tion for  it  has  as  legitimate  a  standing  in  a  court  of  justice  as 
any  other  action. 

Malice   ami   Damage   Presumed  from   Speaking  Actionable   Words.— 

The  jury  are  instructed,  that  words  that  impute  to  a  party  the 
commission  of  the  crime  of  {l,arcemj)  are  actionable  in  them- 
selves, and  the  law  presumes  that  the  party  uttering  them  in- 
tended maliciously  to  injure  the  person  concerning  whom  they 
are  spoken,  unless  the  contrary  appears  from  the  circumstances, 
occasion  or  manner  of  the  speaking  of  the  words. 

That  all  the  plaintiff  is  bound  to  prove  on  his  part  to  entitle 
him  to  recover  in  this  case  is  the  speaking,  by  the  defendant,  of 
enough  of  the  slanderous  words  charged  in  the  declaration  to 
amount  to  a  charge  of  {stealing  or  larceny)  against  the  plaintiff; 
and  if  the  jury  believe,  from  the  evidence,  that  the  defendant  is 
guilty  of  the  speaking  of  the  slanderous  words,  charged  in  the 
declaration,  of  and  concerning  the  plaintiff,  then  express  malice 
or  ill-will  need  not  be  proved.  Malice,  in  its  legal  sense,  means 
a  wrongful  act,  done  intentionally,  without  just  cause  or  excuse. 
Smart  vs.  Blanchard,  42  N.  H.,  137 ;  Lick  vs.  Owen,  47  Cal., 
252;  Wilson  vs.  ISFoonan,  35  Wis.,  321;  Eearick  vs.  Wilcox,  81 
111.,  77;  Pennington  vs.  Meeks,  46  Mo.,  217;  Lidianajpolis, 
etc.,  vs.  Horrell,  53  Ind.,  527. 

If  the  jury  believe,  from  the  evidence,  that  the  defendant 
spoke  and  published,  of  and  concerning  the  plaintiff,  the  words 
charged  in  the  declaration,  then  the  law  presumes  they  were 
spoken  maliciously,  and  with  a  view  to  defame  and  injure  the 
plaintiff;  and  this  presumption  of  law  can  only  be  rebutted  by 
evidence  that  the  words  were  spoken  in  what  is  known  as  a 
privileged  communication,  as  explained  in  these  instructions, 
(and  there  is  no  evidence  that  they  were  so  spoken  in  this  case). 


3G2  IXSTRUCTIONS 

The  jurv  ure  further  instructed,  that  in  actions  for  slander, 
the  huv  implies  damages  and  malice  from  the  unqualified  speak- 
ing of  actionable  words  that  are  not  true;  and  also  that  the 
defendant  intciKhMl  the  injiirv  the  slander  is  calculated  to  effect. 

If  the  jury  believe,  from  the  evidence,  that  the  defendant,  in 
speaking  of  the  plaintiff,  in  the  presence  and  hearing  of  others, 
used  the  words,  "She  is  a  whore,"  or  "  She  is  a  damned  whore," 
(or  other  actionable  words  charged  in  the  declaration)^  then 
the  words  are  actionable  in  themselves,  and  the  law  implies  that 
they  were  used  with  a  malicious  intent  to  defame  the  character 
of  the  plaintiff,  and  express  malice  need  not  be  proved. 

If  the  jury  believe,  from  the  evidence,  that  the  defendant 
spoke  the  words  charged  in  the  declaration,  in  the  presence  and 
hearing  of  others,  intending  to  charge  the  defendant  with  having 
committed  the  crime  of,  etc.,  then  the  law  will  imply  malice, 
and  malice  need  not  1)e  otherwise  proved. 

All  the  Words  Need  not  be  Proved. — The  court  instructs  the  jury, 
that  while  it  is  necessary  to  entitle  the  plaintiff  to  recover  in  an 
action  of  slander,  that  he  should  prove  the  slanderous  words 
alleo-ed  in  the  declaration,  still  it  is  not  necessary  to  prove  all 
the  words  that  are  charged  to  have  been  spoken.  It  is  sufficient 
to  prove,  substantially,  the  woi-ds  in  some  one  or  more  of  the 
statements  of  slanderous  words  contained  in  the  declai-ation. 
Hill,  on  Rem.  for  Torts,  375. 

That  to  authorize  a  verdict  for  the  plaintiff  in  an  action  of 
slander,  it  is  not  necessary  that  all  the  slanderous  words  alleged 
in  the  declaration  should  l)c  proved,  unless  it  takes  them  all  to 
constitute  the  slander  charged;  and  in  this  case  if  the  jury  be- 
lieve, from  the  evidence,  that  a  sufficient  number  of  the  words 
charjred  in  the  declaration  to  amount,  in  their  connnon  meaning, 
to  a  charge  of  {larcemj)  against  the  plaintiff,  have  been  proved 
to  have  been  spoken  by  the  defendant,  as  charged  in  the  decla- 
ration, then  the  jury  should  find  the  issues  for  the  plaintiff. 
Baker  ys,  Yomiff,  44  111.,  42. 

Malice  Deflned. — TIk;  jury  are  instructed,  that  the  tei-iii  malice 
has  in  law  a  two-fold  signification.  There  is  what  is  known  as 
nuilice  in  fact  ami  midice  in  law,  or  implied  malice;  in  the  legal 


IN    CIVIL    ACTIONS.  303 

sense,  malice  signifies  a  wrongful  act  intentionally  done,  without 
justification  o-r  legal  excuse. 

Words  Presumed  to  be  Used  in  their  Ordinary  Meaning-. — The  jury 
are  instructed,  that  when  one  person  utters  slanderous  words 
concerning  another,  which,  in  their  ordinary  and  common  sig- 
nification, impute  the  crime  or  offense  of,  etc.,  it  must  be  pre- 
sumed it  was  in  that  sense  they  were  used,  and  understood  by 
the  bystanders  who  heard  them,  unless  other  words  are  used  at 
the  same  time  which  limit  or  qualify  the  ordinary  meaning  of 
the  slanderous  words  used;  and  a  defendant,  when  sued,  cannot 
excuse  his  guilty  conduct  by  an  explanation  in  his  testimony, 
that  he  did  not  use  the  words  to  impute  the  crime  or  offense 
thereby  indicated;  provided,  the  jury  believe,  from  the  evidence, 
that  the  defendant  spoke  the  words,  as  charged.  Miller  vs. 
Johnson,  79  111.,  58. 

Charg-e  of  Fornication  or  Adultery. — The  court  instructs  the  jury, 
that  words,  which,  in  their  common  acceptation,  amount  to  a 
charge  of  fornication  or  adultery,  if  spoken  in  the  presence  of 
others,  and  not  spoken  under  privileged  circumstances,  or  for 
justifiable  ends,  as  explained  in  these  instructions,  are  slanderous 
and  actionable  in  themselves,  and  the  law  will  imply  malice 
from  the  mere  speaking  of  such  words. 

The  court  further  instructs  the  jury,  that  the  words,  etc., 
charged  in  the  declaration,  do  amount  to  a  charge  of  fornication 
or  adultery;  and  if  the  jury  believe  that  the  defendant  uttered 
those  words  of  and  concerning  the  plaintiff,  in  the  presence  and 
hearing  of  others,  as  chai-ged  in  the  declaration,  the  jury  should 
find  the  defendant  guilty. 

STATUTE    OF    LIMITATIONS    PLEADED. 

Cliarge  of  Dislionesty — If  the  jury  believe,  from  the  evidence, 
that  at  or  about  the  time  charged  in  the  declaration,  the  plaintiff 
was  engaged  in  the  business  of,  etc.,  and  that  the  defendant,  in 
a  conversation  with  the  plaintiff,  in  the  presence  and  hearing  of 
other  persons,  within  {one  year)  before  the  commencement  of  this 
suit,  said  to  the  plaintiff,  "  You  are  a  rascal;  you  have  put  your 
property  out  of  your  hands  to  cheat  your  creditors  out  of  their 
pay,"  and  that  this  was  said  with  an  intent  to  charge  the  plain- 
tiff with  having  fraudulently  conveyed  his  property  with  intent 


36-lr  INSTRUCTIONS 

to  defraud  liis  creditors,  or  to  hinder  or  delay  them  in  the  eol- 
lectioii  of  their  just  (k'l)ts,  then  the  jury  shoukl  find  the  defend- 
ant guilty,  and  assess  the  plaintiffs  damages  at  what  tliey  think 
is  iust  and  riirht,  under  the  evidence  in  the  case.  Ooolev  on 
Torts,  202;  NeUon  vs.  Borchenius,  h'2  IlL,  2-30;  Phillips  vs. 
Jloefc'/',  1  Penn.  St.,  02;  Fitzgerrold  vs.  liedjield,  51  I'arl)., 
484 ;  Orr  vs.  Skofield,  50  Me.,  4S3. 

If  the  jury  believe,  from  the  evidence,  that  at  or  about  the 
time  stated  in  the  declaration  the  plaintiff  was  engaged  in  the 
business  of,  etc.,  and  that  the  defendant,  in  a  conversation  with 
the  plaintiff,  in  the  presence  and  hearing  of  other  persons,  and 
within  {one  year)  before  the  commencement  of  this  suit,  said  to 
the  plaintiff,  "  You  have  put  your  property  out  of  your  hands," 
etc.,  and  that  these  words  were  spoken  without  qualification  by 
other  lanjruao-e  or  circumstances,  showing  that  the  defendant 
did  not  intend  the  natural  and  oi-dinary  meaning  of  the  words 
used,  then  the  jury  should  fiiul  the  defendant  guilty,  and  assess 
the  plaintiff's  damages  at  what  they  deem  to  be  right  and  proj^er 
inider  tlie  evidence. 

Tlie  jury  are  further  instructed,  that  words  spoken  of  another 
which,  in  their  common  acceptation,  charge  him  with  selling  or 
disposing  of  his  property  with  an  intent  to  defraud,  hinder  or 
delay  his  creditors  of  their  just  debts,  are  actionable  in  themselves 
without  showing  special  damage  arising  therefrom.  The  law 
will  imply  both  malice  and  danuige  from  the  speaking  of  such 
words,  if  the  jury  believe,  from  the  evidence,  that  such  words 
were  spoken,  as  charged  in  the  declaration. 

Charged  of  Arson  by  Innuendo. — The  court  instructs  the  jury,  that 
if  they  believe,  from  the  evidence,  that  before  the  time  when 
the  slanderous  words  are  chai-ged  to  have  been  spoken,  the 
defendant's  dwelling  house  had  been  burned,  and  that  after- 
wards, and  within  {one  year)  before  the  commencement  of  this 
suit,  the  defendant,  in  the  presence  and  hearing  of  third  persons, 
spoke  the  words,  "  She  burned  my  house  up,"  or  the  words,  "  I 
liave  got  i-id  of  my  old  house  burner,"  or  the  words,  "  She  is  an 
old  house  burner;"  and  if  the  jury  furtlier  believe,  from  the 
evidence,  that   in   the  speaking  of  said  words,  the  defendant 


IN    CIVIL    ACTIONS.  365 

intended  to  convey  the  idea  and  to  charge  that  the  plaintiff  had 
wilfully  and  feloniously  burned  the  said  house  of  defendant,  and 
that  the  persons  hearing  the  language  so  understood  him,  then 
the  speaking  of  such  words  would  be  slanderous,  and  the  jury 
should  find  the  defendant  guilty. 

Charge  of  Murder,  by  IiiiuieiMlo. — If  the  jury  believe,  from  the 
evidence,  that  the  defendant,  within  {one  year)  before  the  com- 
mencement of  this  suit,  in  speaking  of  and  concerning  the  plain- 
tiff, spoke  the  words,  "  She  killed  my  father,"  in  the  presence 
and  hearing  of  third  persons;  and  further,  that  in  speaking  these 
words,  the  defendant  intended  to  charge  the  plaintiff  with  hav- 
ing wilfully  and  feloniously  caused  the  death  of  defendant's 
father,  then  such  words  were  slanderous,  and  the  jury  should 
find  for  the  plaintiff. 

Words  Must  be  Proved  as  Charged. — The  Jury  are  instructed,  that 
to  entitle  the  plaintiff  to  recover  in  this  suit,  he  must  prove  the 
speaking  of  the  words  alleged  in  the  declaration ;  other  words  of 
like  meaning,  or  equivalent  words  or  expressions,  will  not 
suffice. 

That,  though  the  jury  may  believe,  from  the  evidence,  that 
the  defendant  spoke  words  which  are  equivalent  to  the  words 
charged  in  the  declaration,  and  which  convey  the  same  meaning, 
still,  if  the  jury  further  believe,  from  the  evidence,  that  tlie 
words  proved  are  not,  substantially,  the  same  words  as  those 
charged  in  the  declaration,  then  the  plaintiff  is  not  entitled  to 
recover.     Flinn  vs.  Barlow^  16  111.,  39. 

That  the  plaintiff  is  not  entitled  to  recover  upon  the  proof  of 
the  speaking  of  words  which  are  only  similar  to,  or  have  the 
same  meaning,  as  the  words  charged  in  the  declaration,  but  ai-e 
not  the  same  words.  She  can  only  recover  upon  pi-oving  the 
speaking  of  the  material  words  of  some  one  or  more  of  the  slan- 
derous statements  charged  in  the  declaration,  precisely  as  there- 
in charged.    ^Yallace  vs.  Dixon.,  82  111,,  202. 

The  jury  are  instructed  by  the  court,  that  the  burden  of  proof 
in  this  case,  is  upon  the  plaintiff,  and  to  entitle  her  to  recover,  it 
is  incumbent  on  her  to  prove,  by  a  preponderance  of  all  the  evi- 
dence, that  the  defendant  spoke  of  and  concerning  the  plaintiff 


3GG  iNSTRrcTioxs 

the  slanderous  eliar<]^es,  or  some  one  or  more  of  tlie  slanderous 
charges,  contained  in  her  (k'chiration,  in  \\iv.  precise  words  and 
lani:;uai;-e  in  which  they  jire  thei-ein  set  forth. 

And,  if  the  jury  l)elieve,  from  all  the  evidence  in  the  case, 
that  the  })laintiif  has  failed  to  establish  the  speaking  of  such 
words,  by  a  preponderance  of  all  the  evidence,  then  the  juiy 
should  find  the  defendant  not  guilty. 

The  court  further  instructs  the  juiy,  that  proof  of  the  speak- 
ing of  the  following  words  (d/i//  mords  different  from,  those 
charged  in  the  declaration) — if  the  jury  lind,  from  the  evidence, 
that  the  speaking  of  such  words  has  becMi  proven — does  not  prove 
any  of  the  charges  laid  in  the  decdaration  in  this  case. 

The  court  instructs  the  jury,  that  in  an  action  for  slander,  so 
many  of  the  words  complained  of  must  be  proved  as  will  estab- 
lish the  slander,  in  the  precise  words  charged  in  the  declaration; 
other  words  of  similar  import,  or  ecpiivalent  words,  if  proved, 
will  not  sustain  the  action. 

Words  Not  Spoken  Maliciously. — The  jury  are  instructed,  that  to 
constitute  slander,  it  is  not  necessary  that  a  person  should  intend 
to  make  a  false  charge;  the  real  test  is,  did  the  speaker  intend 
by  the  words  used,  to  make  the  charge  alleged  in  the  decla- 
ration, did  the  hearers  understand  that  he  so  intended,  and  was 
the  charge  false?     Skull  vs.  Raymond^  23  Minn.,  GG. 

The  court  further  instructs  the  jury,  that  an  action  for  slan- 
der will  not  lie,  for  words  spoken  under  such  circnimstances  as 
wouhl  lead  persons  present  to  believe  that  they  were  not  spoken 
as  truth,  and  were  not  intended  by  the  speaker,  or  understood 
by  the  hearers,  as  intended  to  convey  the  charge  complained  of 
in  the  declaration ;  and  in  this  case,  though  the  jury  may  believe, 
fi'om  tlu^  evidence,  that  the  defendant  did  speak  the  slanderous 
words  charged  in  the  declai-ation,  still  if  the  jury  further  believe, 
from  the  evidence,  and  the  facts  and  circumstances  proved  on 
the  trial,  that  the  defendant  tlid  not  intend  to  impute,  and  the 
hearers  did  not  understand  him  to  impute,  to  the  plaintiff,  the 
offense  which  the  words  might,  under  other  cii-cuinstances, 
naturally  import,  then  the  jury  should  find  the  defendant  not 
guilty. 


IN    CIVIL    ACTIONS.  307 

Though  the  jury  may  believe,  from  the  evidence,  that  the 
slaiidei-ous  words  were  spoken  as  alleged  in  plaintiff's  declara- 
tion, still,  if  the  jury  further  believe,  from  the  evidence,  that 
the  words  were  not  spoken  maliciously,  and  that  the  character 
of  the  plaintiff  has  not  been  injured  thereby,  then  the  jury  are 
at  liberty  to  bring  in  a  verdict  for  the  plaintiff  for  nominal 
damages  only. 

If  the  jury  believe,  from  the  evidence,  that  the  defendant  in 
speaking  the  words  charged,  was  not  actuated  by  malice,  but 
simply  repeated  them  as  something  he  had  heard  from  others, 
and  without  any  malice  towards  the  plaintiif,  and  did  not  intend 
to  be  understood  as  imputing  any  offense  to  her,  then  the  jury 
should  iind  for  the  defendant.  And  it  is  a  question  for  the  jury 
to  determine  from  all  the  facts  and  circumstances  proved,  and 
from  all  the  evidence  in  the  case,  whether  the  defendant  did 
thus  repeat  the  words,  and  whether  he  acted  maliciously  in  so 
doing.     Cummerford  vs.  3IcAvoy,  15  111.,  311. 

Anger  no  Justification. — The  court  instructs  the  jury,  that  anger 
is  not  a  justification  for  the  use  of  slanderous  words,  and  it  ought 
not  to  be  considered  even  in  mitigation  of  damages,  unless  the 
anger  is  provoked  by  the  very  person  against  whom  the  slan- 
derous words  are  used.    Janch  vs.  JancJi,  50  Ind.,  135. 

In  this  case,  if  the  jury  believe,  from  the  evidence,  that  the 
defendant  spoke  of  the  plaintiff,  any  of  the  slanderous  words 
charged  in  the  declaration,  then  it  matters  not  who  commenced 
the  conversation;  or  that  the  defendant  was  angry  at  the  time, 
unless  his  anger  was  wrongfully  provoked,  in  whole  or  in  part, 
by  the  acts  or  language  of  the  plaintiff  herself. 

If  the  jury  believe,  from  the  evidence,  that  the  defendant 
spoke  in  the  presence  and  hearing  of  others,  of  and  concerning 
the  plaintiif,  the  slanderous  words  charged  in  the  declaration, 
then  it  is  immaterial  whether  the  words  were  uttered  with  or 
without  anger  or  passion  on  the  part  of  the  defendant,  unless 
the  jury  further  believe,  from  the  evidence,  that  such  passion 
was  wrongfully  caused  or  provoked  by  the  plaintiff;  and  even  in 
such  case,  anger  or  passion  would  be  no  justification,  it  could 
only  be  considered  by  the  jury  in  mitigation  of  damages,  in  case 


308  INSTRUCTIONS 

tliev  find  the  i)lea  of  justification  not  established  by  a  prepon- 
dei-ancc  of  testimony,  and  find  the  defendant  g-uilty. 

Anger  ill  3Iitis:ali«ii,  V*licn. — The  jury  are  instructed,  that  while 
it  is  true,  that  anger  or  passion  is  not  a  justification  for  the  use 
of  slanderous  words,  or  even  a  mitigating  circumstance,  unless 
provoked  by  the  person  against  whom  the  slanderous  words  are 
spoken;  yet,  if  the  party  complaining  does  wrongfully  provoke 
such  angei',  the  fact  may  1)0  taken  into  account  and  considered 
liy  the  jury  in  fixing  the  amount  of  their  verdict,  in  case  they 
find  the  defendant  guilty.  Freeman  vs.  Tinsley,  50  111.,  494; 
McClintock  vs.  Crich^  4  la.,  453. 

Though  the  jury  ma}'  believe,  from  the  evidence,  that  some  of 
the  slanderous  words,  charged  in  the  declaration,  were  uttered 
by  the  defendant  as  charged,  still,  if  the  jury  further  believe, 
from  the  evidence,  that  the  words  were  spoken  in  the  heat  of 
l)assion,  during  a  quarrel  between  the  defendant  on  one  side, 
and  the  plaintiff  and  one  A,  B.  on  the  other,  and  that  in  the 
course  of  such  altercation,  the  said  A.  B.  and  the  said  plaintiff, 
without  cause  or  provocation  on  the  part  of  the  defendant,  used 
violent  and  abusive  language  against  the  defendant,  and  c-alled 
him  vile  names,  calculated  to  provoke  the  passions,  and  that  the 
slanderous  words  were  used  by  defendant  while  laboring  under 
excitement  and  passion,  caused  by  such  abuse,  then,  while  it  is 
true  that  these  facts  do  not  constitute  a  defense  to  the  action,  if 
proved,  they  are  proper  to  be  taken  into  consideration  by  the 
iurv  as  mitio-atinir  circumstances  on  behalf  of  the  defendant. 

Slanderous  Words  Explained. — Although  the  jury  may  believe, 
from  the  evidence,  that  the  defendant,  in  speaking  of  the  plain- 
tiff, upon  the  occasion  referred  to  by  the  witnesses,  did  say,  ("  You 
are  a  thief,  you  stole  my  corn);"  still,  if  the  jury  further  l)elieve, 
from  the  evidence, -that  he  accompanied  that  charge  with  such 
explanations  as  woidd  s1k»\v  to  the  l)ystan(lcrs,  who  heard  the 
conversation,  that  he  onlv  meant  to  charnje  the  defendant  with  a 
ti-cspass,  and  not  witli  a  ci'ime  of  larceny,  then,  so  far  as  that 
charge  is  concerned,  the  jury  should  find  for  the  defendant. 
Mitchell  vs.  Stromj^  17  111.,  597. 


IN    CIVIL    ACTIONS.  309 

Though  the  jury  may  believe,  from  the  evidence,  that  the  de- 
fendant did  speak  some  of  the  slanderous  words  complained  of, 
still,  if  the  jury  further  believe,  from  the  evidence,  that  the  de- 
fendant in  the  same  conversation,  and  in  presence  of  the  same 
persons,  voluntarily  and  in  good  faith,  recalled  or  took  back  the 
slanderous  language,  or  qualified  such  slanderous  words,  so  that 
the  persons  present  would  clearly  understand  from  the  whole 
conversation,  that  the  offense  of  {larceiiy)  was  not  imputed  or 
charged  upon  the  plaintiff,  then  such  slanderous  words  will  not 
afford  the  plaintiff  any  ground  of  action  in  this  case. 

PLEA  OF  JUSTIFICATION  FILED. 

All  the  Words  Need  not  be  Proved. — Tiie  court  instructs  the  jury 
that  tlie  plaintiff  is  not  bound  to  prove  the  speaking  of  all  the 
words  charged  in  the  declaration;  if  the  jury  believe,  from  the 
evidence,  that  the  defendant  s23oke  of  and  concerning  the  plain- 
tiff, in  the  presence  of  others,  any  of  the  slanderous  words 
charged  in  the  declaration,  the  fair  import  of  which  would  be 
to  charge  the  plaintiff  with  the  crime  of  {larceny),  then  he  is  en- 
titled to  a  verdict,  unless  the  defendant  has  established  the  truth 
of  his  plea  of  justification,  by  the  evidence,  in  tiic  minds  of  the 
jury,  beyond  any  reasonable  doubt  {or  hy  a  preponderance  of 
the  evidence). 

Plea  of  Jiistiflcation,  How  Proyed. — The  court  instructs  the  jury, 
as  a  matter  of  law,  that  where  a  plea  of  justification,  in  an 
action  for  slander,  accuses  the  plaintiff  of  a  crime,  the  defend- 
ant, in  order  to  sustain  the  plea,  must  prove  the  guilt  of  the 
plaintiff,  as  charged  in  the  plea,  beyond  a  reasonable  doubt.  So 
far  as  the  degree  of  proof  is  concerned,  the  plaintiff  occupies 
the  same  position  as  if  he  were  on  trial  upon  an  indictment  for 
the  offense  charged.  Merh  vs.  Gchhaenser,  50  CaL,  631; 
Corhlcy  vs.  Wilson,  71  111.,  209. 

The  court  instructs  the  jury,  that,  in  this  case,  the  plea  of 
justification  alleges  that  the  plaintiff  was  guilty  of  the  crime  of 
{perjury),  and,  to  prove  the  truth  of  that  plea,  it  is  incumbent 
upon  the  defendant  to  prove  everything  requisite  to  constitute 
the  crime  of  {perjury)  beyond  a  reasonable  doubt.  Barton  vs. 
Thoinpnon,  46  la.,  30;  Mott  vs.  Dawson,  46  la.,  533. 

24 


370  INSTRUCTIONS 

The  court  furtlu>r  instructs  the  jury,  as  a  matter  ol'  law.  that 
in  order  to  sustain  his  pleu  oi"  justification,  in  this  case,  it  is 
incumbent  upon  the  defendant  to  prove,  to  the  satisfaction  (»f 
the  jury,  beyond  all  reasonable  doubt,  that  the  plaintiff  was 
guilty  of  the  crime  of  {perjary),  as  alleged  in  said  plea. 

Among  the  other  things  necessary  for  the  defendant  to  prove, 
to  the  satisfaction  of  the  jury,  in  order  to  maintain  the  plea  of 
justification,  in  this  case,  is  the  fact  that  the  plaintiff,  before  he 
testified  as  a  witness  in  the  case  of  E.  vs.  *S'.,  referred  to  by  the 
witnesses,  was  sworn  to  testify  to  the  truth,  the  whole  truth,  and 
nothing  but  the  truth,  by  some  officer  authorized  by  law  to  ad- 
minister the  oath.  And  if  the  jury  find,  from  the  evidence, 
that  the  defendant  has  failed  to  prove  that  fact  upon  this  trial, 
beyond  a  reasonable  doubt,  then,  as  a  matter  of  law,  the  justifi- 
cation is  not  made  out. 

Contra — The  court  instructs  the  jury,  that  if  they  believe, 
from  the  evidence,  that  the  plaintiff  was  guilty  of  the  crime  of 
{perjurif),  in  manner  and  form  as  charged  in  the  plea  of  justifi- 
cation, filed  in  this  case,  then  the  jury  should  find  for  the  de- 
fendant. 

In  order  to  sustain  the  plea  of  justification,  it  is  not  necessary 
that  the  defendant  should  establish  the  truth  of  that  plea  beyond 
a  reasonable  doubt;  it  is  sufficient  if  it  is  established  by  a  pre- 
ponderance of  the  evidence.  Cooley  on  Torts,  2(1 8;  Elliott  vs. 
Van  Buren,  33  Mich.,  40;  Blaeser  vs.  Milwaukee,  etc.,  37 
AVis.,  31;  Knowles  vs.  Scribner,  57  Me.,  41)5;  Rothschild  vs. 
Am.  Cent.  Ins.  Co.,  62  Mo.,  356;  Ban-  vs.  Wilson,  22  Minn., 
206 ;  Jones  vs.  Graves,  26  Ohio  St.,  2. 

The  jury  are  further  instructed,  that  though  they  believe, 
from  the  evidence,  that  tlu>  j)laintiff  did  testify,  on  tlie  trial  of 
E.  vs.  S.,  that  the  trees  in  (piestion  were  on  the  north  side  of  the 
hedge,  that  fact  will  not  be  sufficient  to  muintiiin  the  defend- 
ant's plea  of  justification,  uidess  the  jury  fui-ther  believe,  from 
the  evidence,  that  the  question  of  the  location  of  said  trees,  with 
reference  to  said  hedge,  was  a  materi.d  question  in  the  trial  of 
said  cause;  and,  also,  that  the  plaintiff  knowingly  and  wilfully 
testified  to  what  he  knew  to  be  untrue  in  that  particular. 

If  the  jury  believe,  from  the  evidence,  that  the  plaintiff  was 
called  as  a  witness  in  the  case  of  E.  vs.  ii.,  and  that,  before  tes- 


IN    CIVIL    ACTIONS.  371 

tifying,  he  was  sworn  by  {some  officer  authorized  to  administer 
oaths)  to  tell  the  truth,  the  whole  truth,  and  nothing  l)iit  tlio 
truth,  and  that  upon  said  trial  the  said  plaintiff  knowingly, 
wilfully  and  falsely  testified  that  the  trees  in  question  were  on 
the  south  side  of  a  hedge,  and  that  the  question  of  the  location 
<»f  said  trees,  in  reference  to  said  hedge,  was  a  material  ques- 
tion on  the  trial  of  said  cause,  then  the  defense  of  justification 
is  made  out,  and  the  jury  should  find  for  the  defendant. 

The  court  further  instructs  the  jury,  that  if  they  believe,  from 
the  evidence,  that  the  plaintiff  was  sworn  by,  etc.,  to  tell  the 
truth,  the  whole  truth,  and  nothing  but  the  truth,  and  that  he 
swore  to  the  statements  set  forth  in  the  defendant's  plea  of  justi- 
fication, and  that  in  so  swearing  he  knowingly  and  wilfully  swore 
to  what  was  not  true,  and  that  such  testimony  was  material  upon 
the  trial  of  the  suit  of  E.  vs.  S.,  then,  and  in  that  case,  the  de- 
fendant would  be  justified  in  telling  the  plaintiff  that  he  swore 
falsely  on  that  trial,  or  that  he  swore  to  a  lie  on  that  trial. 

[See  Perjury.] 

When  the  Plea  Does  Not  Impute  Crime. — The  court  instructs  the 
jury,  that  it  is  sufficient  for  the  defendant  to  establish  his  plea 
of  justification  by  a  pi-eponderance  of  evidence;  and  if  the  jury 
believe,  from  the  evidence,  that  the  defendant's  plea  of  justifica- 
tion, in  this  case,  has  been  proved  by  a  preponderance  of  evidence, 
the  jury  should  find  the  defendant  not  guilty,  although  they  find 
that  the  defendant  spoke  the  words  alleged.  The  law  does  not 
re(piire  the  truth  of  such  a  plea  to  be  established  beyond  a 
reasonable  doubt. 

If  the  jury  believe,  from  the  evidence,  that  the  defendant 
spoke  and  published  of  and  concerning  the  plaintiff  the  alleged 
slanderous  words,  in  manner  and  form  as  charged  in  the  declara- 
tion, then  the  jury  should  find  the  defendant  guilty,  unless  they 
further  find,  from  the  evidence,  that  the  defense  of  justification, 
set  up  in  the  defendant's  plea,  has  been  established,  on  this  trial, 
by  a  preponderance  of  the  evidence. 

The  court  further  instructs  the  jury,  that  if  they  believe,  fro]n 
the  evidence,  that  the  defendant  spoke  and  published  of  and 
concerning  the  plaintiff  the  slanderous  words,  charged  in  plain- 
tiff's declaration,  in  manner  and  form  as  therein  stated,  theii  the 
law  will  imply  malice  and  a  consequent  injury,  unless  the  jury 


372  INSTRUCTIONS 

further  fiiul,  that  tlic  defense  of  justification  lius  been  established 
l)y  u  preponderance  of  evidence. 

Plea  of  Jiistiflcntion  in  (iood  Faith. — Tlie  court  instructs  the  jury, 
tliat,  ahhough  they  shoukl  find,  from  the  evidence,  that  the  de- 
fendant in  this  case  has  not  sustahied  his  plea  of  justification, 
still,  the  fact  that  he  has  filed  such  plea,  must  not  of  itself  be 
regarded  by  the  jury  as  evidence  of  malice  on  the  part  of  the 
defendant.     JTarover  vs.  Ilarover,  78  111,,  412. 

The  court  instructs  the  jury,  that  if  they  believe,  from  the 
evidence,  that  the  proof  offered  by  defendant  to  sustain  his  plea 
of  justification,  tended  to  prove  said  plea,  tlien  they  should  con- 
sider that  circumstance  in  arriving  at  their  conclusion,  as  to 
wliethcr  the  said  ])lea  was  filed  in  good  faith  by  the  defendant, 
and  with  the  belief  that  he  could  sustain  the  same  by  evidence 

[See  Libel.] 

Office  of  the  Plea  of  Justilication. — The  court  instructs  the  jury, 
tliat  in  this  state  a  defendant  has  a  right  to  file  as  many  pleas  as 
he  deems  necessary  for  his  defense,  and  it  is  no  objection  that 
the  pleas  are  inconsistent  with  each  other;  each  plea  stands  by 
itself  and  forms  a  distinct  issue. 

And  in  this  case,  the  fact  that  defendant  has  filed  a  plea  justi- 
fying the  speaking  of  the  words  charged,  docs  not  relieve  the 
plaintiff  from  the  necessity  of  proving  the  speaking  of  the  words 
alleged.  The  plea  of  justification  cannot  be  used  to  c(Miviet  the 
defendant;  he  is  not  bound  to  make  his  defense  till  thei-e  is  evi- 
dence showing  his  guilt.     Farnaii  vs.  Childs,  66  111.,  54-1. 

Repeating  Report. — If  the  jury  believe,  from  the  evidence,  that 
tlie  defendant  is  guilty  of  speaking  the  slanderous  words  charged 
in  tlie  declaration,  then  the  fact,  if  proved,  that  defendant  gave 
tlie  statement  as  a  report  in  the  neighborhood,  and  mentioned 
liis  authority  for  the  statement,  still,  these  facts  alone  do  not  ex- 
onerate him  from  liability.  Fowler  vs.  Chichester^  26  Ohio  St.,  0. 
The  jury  are  instructed,  that,  although  they  may  believe,  from 
the  evidence,  that  the  defendant  spoke  the  slanderous  words, 
charged  in  the  declaration,  of  and  concerning  the  plaintiff,  yet, 
if  the  jury  fiirthcv  believe,  from  the  evidence,  that  the  defend- 


IN    CIVIL    ACTIONS.  373 

ant  did  not  originate  the  slander,  that  he  merely  reported  what 
some  one  else  had  said  to  him,  or  in  his  presence,  and  that  he 
acted  without  malice  in  repeating  it,  and  that  the  plaintiff  was, 
in  reality,  in  no  manner  injured  by  the  slander,  then  the  jury 
may  give  nominal  damages  only. 

[See  Measure  of  Damages.] 


TENDER. 

Wliat  Constitutes  a  Valid  Tender. — As  regards  the  plea  of  tender 
filed  in  this  case,  the  court  instructs  the  jury,  that  to  constitute 
good  tender  of  any  amount  of  money,  it  is  necessary  for  the 
party  indebted,  al)Solutely  and  unconditionally,  to  offer  to  pay  to 
the  other  party  the  amount  tendered  in  current  money,  such  as 
is  made  a  legal  tender  b}^  law,  and  actually  offer  the  money  at 
the  time  the  tender  is  claimed  to  have  been  made  by  producing 
the  money  and  showing  it  to  the  person  to  whom  the  money  is 
due,  unless  such  j^erson  waives  the  performance  of,  or  compli- 
ance with,  some  or  all  of  these  conditions.  2  Greenlf.  Ev.,  § 
601,  602;  Rose  vs.  Duncan^  49  Ind.,  269;  Cothran  vs.  Scanlan, 
34  Ga.,  555;  Hunter  vs.  Warner,  1  Wis.,  141. 

The  court  further  instructs  the  jury,  that  to  have  a  tender  of 
any  avail,  the  amount  tendered  must  be  the  precise  sura,  or  more 
than  the  amount  due,  and  the  tender  must  be  kept  good  by 
bringing  the  money  tendered  into  court  and  depositing  it  for 
the  benefit  of  the  plaintiff.  Pars,  on  N.  &  B.,  621;  Ileiily  vs. 
Streator,  5  Ind.,  207;  Pillshunj  vs.  Willoughhy,  61  Me.,  274. 

The  jury  are  instructed,  as  a  matter  of  law,  that  in  order  to 
constitute  a  valid  tender,  the  money  must  be  offered  to,  and 
exhibited  in  view  of,  the  person  to  whom  the  tender  Is  to  be 
made,  unless  it  appears,  from,  a  preponderance  of  the  evidence, 
that  such  person,  by  his  conduct  or  words,  prevented  the  tender 
or  excused  the  exhibition  of  tlie  money  in  his  sight. 

Although  the  jury  may  believe,  from  the  evidence,  that  before 
this  suit  was  brought  the  defendant  tendered  to  the  plaintiff  the 

sum  of  $ ,  still  such  tender  cannot  avail  him  here,  nnless 

the  jury  further  believe,  from  the  evidence,  that  the  defendant 


3  74  INSTRUCTIONS 

has  kept  that  tender  cjood  by  bringing  the  money  into  this  court 
for  the  use  of  the  })kuntiff. 

To  constitute  a  giKxl  and  sufficient  tender,  the  debtor  must 
offer  to  pav  and  tender  to  the  ci-editor  the  precise  amount  which 
lie  intends  to  jiay  and  allow  the  creditor  to  keep;  he  cannot 
offer  tlie  creditor  more  than  he  admits  is  due  or  intends  to  pay, 
and  require  the  creditor  to  make  change,  and  after  taking  out 
the  amount  tendered  to  himself  pay  over  the  balance  to  the 
debtor. 

Burden  of  Proof. — Upon  the  question  of  tender,  the  court  in- 
structs the  jury,  that  the  burden  of  proof  is  upon  the  defendant, 
and  to  entitle  him  to  a  verdict  upon  that  issue,  it  must  appear, 
l)y  a  i)re})onderance  of  the  evidence,  that  the  defendant,  before 
the  commencement  of  the  suit,  unconditionally  offered  to  pay 
to  the  })laintiff  a  certain  definite  sum  in  legal  tender  money; 
that  the  money  was  actually  produced  and  shown  to  the  plain- 
tiff; that  the  amount  so  tendered  was  offered  in  payment  of  the 
debts  and  demands  sued  on  in  this  case,  or  in  such  a  way  as  to 
cover  these  demands,  and  that  the  amount  offered  was  equal  to 
the  amount  due  upon  the  claims  upon  which  the  tender  was 
made;  and,  further,  that  the  tender  has  been  kept  good  by  the 
payment  of  the  amount  so  tenderiMl  into  court  for  the  plaintiff; 
unless  the  jnry  find,  from  the  evidence,  and  under  the  instruc- 
tions of  the  court,  that  some  one  or  more  of  these  requisites  of 
a  good  tender  have  been  waived  or  dispensed  with  by  the  plain- 
tiff, as  explained  in  these  instructions.  Pulsifer  vs.  Shepard, 
3G  Ilk,  513. 

Tender  as  a  Gift  or  Present. — Though  the  jury  may  believe,  from 
the  evidence,  that  upon  the  occasion  referred  to  by  the  wit- 
nesses, the  defendant  did  ])roduce,  count  out  and  actually  offer 

to  the  plaintiff  the  sum  of  8 ,  still,  if  the  jury  further 

believe,  from  the  evidence,  that  such  offer  was  accompanied  by 
the  statements,  on  the  part  of  the  defendant,  that  he  owed  the 
]>laintiff  nothing;  that  he  would  make  him  a  present  of  that 
amount  of  money,  etc.  {<t)ii/  inordx  (le)i>/l)uj  the  iiidebtedtie^^^ 
hat  ojfcrliuj  a  bonus),  then  this  would  not  constitute  a  tender  of 


IN    CIVIL    ACTIONS.  375 

any  amount  upon  the  demands  involved  in  this  suit ;  and  if  the 
jury  further  find,  from  the  evidence,  that  no  other  tender  has 
been  made  by  the  defendant,  then,  U23on  the  question  of  tender, 
the  juiT  should  find  for  the  plaintiff,  even  though  the  jury  be- 
lieve, from  the  evidence,  that  the  defendant  has  attempted  to 
keep  such  alleged  tender  good  by  paying  the  money  into  court. 
2  Greenlf.  Ev.,  §  605 ;  Sirmnons  vs.  WilmoU,  3  Esp.,  94. 

On  Condition  of  Receipt  in  Full,  Etc. — Though  the  jury  may  be- 
lieve, from  the  evidence,  that  on  the  occasion  referred  to  by  the 
witnesses,  the  defendant  actually  tendered  to  the  plaintiff  the 

sum  of  $ ,  in  payment  of  the  demand  sued  on  in  this  case, 

and  that  that  sum  was  all  oi-  more  than  was  then  due  thereon, 
still,  if  the  jury  further  believe,  from  the  evidence,  that  that 
tender  or  offer  of  payment  was  coupled  with  or  made  only  upon 
the  condition  that  the  plaintiff  should  give  the  defendant  a 
receipt  in  full  of  all  demands,  then  this  was  a  condition  which 
the  defendant  had  no  right  to  impose  upon  the  plaintiff  upon 
such  tender,  and  such  a  tender  cannot  avail  the  defendant  any- 
thing in  this  suit.     2  Greenlf.  Ev.,  §  605 ;  Wood  vs.  Jlitckcoc/c, 

20  Wend.,  47;  Sutton  vs.  Hawkins,  8  C.  &  P.,  259;  2  Pars,  on 
N.  &  B.,  625. 

Willingness  to  Pay,  bnt  no  Tender. — That  a  mere  expression  of  a 
willingness  or  a  readiness  to  pay,  or  a  proposition  to  pay,  what- 
ever is  due,  without  specifying  any  certain  sum,  and  without 
actually  producing  and  offering  some  definite  sum  of  money, 
does  not  constitute  a  valid  tender.  To  constitute  a  good  and 
sufficient  tender,  the  person  indebted  must  offer  to  pay  a  defi- 
nite, certain  sum  of  money,  and  he  must  specify  upon  what  de- 
mands he  proposes  to  pay  it,  whether  upon  any  particular 
indebtedness,  or  in  payment  of  all  that  is  due  from  him  to  the 
party  to  whom  the  tender  is  made,  unless  the  jury  believe,  from 
the  evidence,  that  the  actual  production  of  the  money  was  dis- 
pensed with,  or  waived  by  the  creditor.      Eastman  vs.  Rajpids, 

21  la.,  570;  Steele  vs.  Briggs,  22  111.,  643. 

Though  the  jury  may  believe,  from  the  evidence,  that  some- 
time about,  etc.,  the  parties  met  and  had  a  conversation  about  the 


370  INSTRUCTIONS 

iiiuttcM-s  in  controversy  in  tliis  suit,  and  that  in  that  convcM-sation, 
(lefeiulan!  tolil  tlu'  ])laiutil't'  that  he  was  ready  to  pay  him  what- 
ever was  due,  that  he  had  the  money  in  liis  poeket,  and  if  the 
phiintilf  wouhl  name  the  sum  he  would  pay  him,  still,  this  would 
not  amount  to  a  valid  tender.  It  should  further  appear,  from  a 
preponderance  of  the  evidence,  that  the  defendant  offered  to  pay 
some  certain,  definite  sum,  and  that  he  then  actually  produced 
the  money  in  view  of  the  plaintiff,  uidess  the  })laintiff  in  some 
manner,  by  act  or  words,  dispensed  with  the  production  of  the 
money.  « 

Acceptance  of  Tender. — The  court  instructs  the  jury,  as  a  matter 
of  law,  that  if  a  party  tender  to  another  a  certain  sum  of  money, 
in  full  satisfaction  and  discharge  of  a  disputed  claim,  and  the 
other  party  receive  it  on  the  terms  proposed,  it  will  constitute  a 
})er})('tual  har  to  any  further  recovery  on  the  same  account.  JenJcs 
vs.  Jiui'r,  5G  111.,  451. 

The  jury  are  instructed,  that  the  la^v  is,  that  where  money  is 
offered  l)y  one  person  to  another,  in  satisfaction  of  a  disputed  claim, 
and  the  offer  l)e  accompanied  by  such  acts  and  declarations  as 
amount  to  a  condition,  that  if  the  money  is  accejited,  it  must  be 
accepted  in  full  satisfaction  of  the  claim,  then  the  party,  to  whom 
it  is  offered,  is  l)ound  to  understand,  that  if  he  takes  the  monev,  he 
takes  it  subject  to  the  conditions  upon  which  it  is  offered;  if  he 
does  not  intend  to  take  the  money  on  those  conditions,  he  must 
not  take  it  at  all.     Preston  vs.  Grant,  34-  Vt.,  201. 

And  in  this  case,  if  the  jury  believe,  from  the  evidence,  that 
before  the  connnencement  of  this  suit,  in  an  interview  between 
j:»laintiff  and  defendant,  the  defendant  offered  and  proposed  to 

pay  the  plaintilt  s ,  upon  condition  that  he  would  acce'pt 

the  same  in  full  payment  of  the  demand  sued  for  in  this  suit, 
and  that  he  would  pay  the  money  upon  no  other  condition, 
claiming  that  he  owed  the  plaintiff  no  more  than  that  sum;  and 
if  the  jury  I'urtliei-  Ik-Tu'vc,  from  the  evidence,  that  the  plaintiff" 
accepted,  and  took  the  money  under  that  offer,  then  he  must  be 
deemed  to  have  taken  the  money  in  full  payment  and  full  satis- 
faction of  such  demands,  no  matter  what  ])rotests  or  objections  to 
SO  receiving  the  money  he  may  have  made  at  the  tim(^ 


IN   CIVIL    ACTIONS, 


377 


Specifying  Objection  to  Acceptance,  a  Waiver,  Etc. — The  court  in- 
structs the  j  ury,  that  the  law  is,  that  when  one  person  makes  a 
tender  to  another,  and  the  tender  is  not  accepted,  and  the  person 
to  whom  the  tender  is  made,  places  his  refusal  to  receive  the 
tender  upon  certain  specified  objections,  such,  for  instance,  as 
that  the  amount  tendered  was  insufficient,  he  cannot,  after  suit  is 
brought,  raise  other  objections  which  might  have  been  easily 
remedied  at  the  time,  if  they  had  been  made  then.  Stohes  vs. 
Rechnagel,  38  N.  Y.  Sup.  Ct.,  368;  ^Yhelan  vs.  Reilley,  61 
Mo.,  565. 

The  jury  are  instructed,  as  a  matter  of  law,  that  when  one  un- 
dertakes to  make  a  tender,  and  the  other  party  refuses  to  receive 
the  amount  proffered  on  the  ground  of  its  insufficiency,  and 
makes  no  other  objection,  this  will  be  a  waiver  of  any  informal- 
ities in  the  mode  or  manner  of  making  the  tender.  ^Yhelan  vs. 
JReilley,  61  Mo.,  565. 

If  the  jury  believe,  from  the  evidence,  that  the  plaintiffs  were 
the  owners  of  the  property  in  question,  and  that  the  defendants 
had  the  same,  claiming  a  lien  thereon,  for  {freight,  etc.),  and 
that  they  refused  to  deliver  up  the  goods  unless  the  plaintiff's 
would  pay  them  an  amount  larger  than  the  jury  believe,  from 
the  evidence,  they  were  entitled  to  demand,  and  so  told  the  plain- 
tiffs, or  their  agent,  then  no  tender  of  any  amount  was  neces- 
sary; provided,  the  jury  believe,  from  the  evidence,  that  the 
plaintiffs  were  ready  and  offered  to  pay  the  amount  that  was 
actually  due. 

[See  Trover.] 

Express  Waiver  of  Production  of  the  Money. — If  the  jury  believe^ 
from  the  evidence,  that  at  some  time  before  the  commencement 
of  this  suit,  the  plaintiff  and  defendant  met  and  talked  over  the 
matter  of  the  claims  sued  on  in  this  case,  and,  that  upon  that  oc- 
casion, the  defendant  offered  to  pay  to  the  plaintiff  $ ,  or 

any  other  certain  sum,  in  payment  of  the  demand  in  question  in 
this  suit,  and,  at  the  same  time,  put  his  hand  in  his  pocket  for 
the  purpose  of  taking  out  the  money  so  offered,  and  that  the 
plaintiff  then  said  to  him,  that  he  need  not  take  out  his  money, 
that  he  would  not  accept  any  such  sum,  or  words  to  that  effect, 
then  this  would  amount  to  a  waiver  of  the  necessity,  on  the  part 


378  INSTRUCTIONS 

of  the  (lefeiulant,  of  actually  producing,  exhibiting  and  offering 
thc!  luuney  to  the  plaintiff. 

Tender  Kept  Good. — If  the  jury  believe,  from  the  evidence,  that 
prior  to  the  coinniencenient  of  this  suit,  the  defendant  tendered 
to  the  plaintiff,  or  to  the  person  authorized  l)y  him  to  collect  the 

account  sued  on  in  this  suit,  the  sum  of  .*? ,  and  that  that 

was  the  full  amount  of  what  was  then  due  to  the  plaintiff,  and 
that  the  defendant  afterwards,  at  the  trial  before  the  justice,  paid 
that  amount  into  the  hands  of  the  justice,  and  left  it  with  him 
to  be  i)aid  to  tlie  plaintiff,  or  to  be  brought  into  this  court  on  ap- 
peal, if  an  appeal  should  be  taken,  and  that  the  same  was  sent 
by  the  justice  to  this  court  ujxui  the  appeal,  and  has  since 
remained  here,  subject  to  the  order  of  the  i>laiiitiff ;  these  facts 
constitute  a  good  tender,  and  upon  that  issue  the  jury  should 
find  for  the  defendant. 

If  the  jury  l)elieve,  from  the  evidence,  that  before  the  com- 
mencement of  this  suit  the  defendant  made  a  tender  of  ^ 

in  payment  of  the  demand  sued  upon,  and  tliat  he  has  kept  that 
tender  good,  as  explained  in  the  former  instructions  in  this  case, 
then,  to  entitle  the  plaintiff  to  recover,  lie  must  show,  by  a  pre- 
ponderance of  evidence,  that  at  the  time  of  such  tender  there 

was  more  than  $ due  to  him;  and  unless  he  has  done  so, 

the  jury  must  find  the  issue  of  tender  in  favor  of  the  defendant. 

Tender  Alter  Suit  Brought. — If  the  jury  believe,  from  the  evi- 
dence, that  sometime  on,  or  about,  etc.,  and  since  the  commence- 
ment of  this  suit,  the  defendant,  by  his  attorney,  tendered  to  the 
])laintiff  in  payment  of  the  demands  now  in  (piestion,  the  sum  of 

^ for  such  debts  and  the  costs  incurred  in  the  suit  uj)  to 

that  time;  and    further,  that  at  that  time  there  was  ^\o   more 

than  the  said  sum  of  ^ due  to  the  plaintiff  including 

such  costs;  and  further,  that  the  defendant  has  kept  that  tender 

irood  bv  paving:  the  said  sum  of  S into  this  court  for  the 

use  of  the  plaintiff;  then,  upon  the  (piestion  of  tender,  the  jury 
should  find  a  verdict  for  the  defendant.  Barnes  vs.  Greene,  30 
la.,  114. 


IN    CIVIL    ACTIONS.  379 

TRESPASS. 

INJURIES    TO    THE    PERSON. 

Assault  Defined. — The  court  instructs  the  jury,  that  every  per- 
son has  a  right  to  complete  and  perfect  immunity  from  hostile 
assaults  that  threaten  danger  to  his  person  —  a  right  to  live  in 
society  without  being  unnecessarily  or  wrongfully  pnt  in  fear  of 
personal  harm;  and  an  assault  is  an  attempt  with  unlawful  force 
to  inflict  bodily  injury  upon  another,  accompanied  with  the  ap- 
parent present  ability  to  give  effect  to  the  attempt  if  not  pre- 
vented.    Cooley  on  Torts,  160. 

That  whoever  attempts  to  strike,  touch  or  do  any  violence  to 
another,  however  small,  in  a  wanton,  wilful,  angry  or  insulting 
manner,  having  an  intention  and  an  apparent  present  ability  to 
do  some  violence  to  such  person,  is  guilty  of  an  assault. 

Assault  and  Battery  Defined. — The  jury  are  instructed,  that  an 
assault  and  battery  consists  in  an  injury  actually  done  to  the 
person  of  another  in  an  angry  or  revengeful,  rude  or  insolent 
manner.  Any  unlawful  beating  of  another,  however  slight,  is 
an  assault  and  battery ;  and  the  degree  of  bodily  pain  and  in- 
jnry,  if  the  assault  and  battery  are  proved,  is  only  important  as 
affecting  the  measure  of  damages.     Cooley  on  Torts,  162. 

If  the  jury  believe,  from  the  evidence,  that  the  defendant 
sometime  on,  or  about,  etc.,  struck  and  kicked  the  plaintiff,  as 
alleged  in  plaintiff's  declaration,  without  any  sufficient  provoca- 
tion therefor,  as  explained  in  these  instructions,  and  that  the 
plaintiff  was  injured  by  such  striking  and  kicking,  and  has 
suffered  any  damage  therefrom,  then  the  jury  should  find  the 
issues  for  the  plaintiff. 

The  court  further  instructs  the  jury,  that  if  they  believe,  from 
the  evidence,  that  the  defendant  assaulted  and  beat  the  plaintiff, 
as  charged  in  the  declaration,  then  they  should  find  a  verdict 
for  the  plaintiff,  unless  they  further  believe,  from  the  evidence, 
that  such  assaulting  and  beating,  when  done,  were  reasonably 
and  apparently  necessary  in  defense,  etc.,  and  that  the  force  and 


3S0  INSTRUCTIONS 

violence  used  ])y  tlio  defeiulaiit  were  no  more  than  a  reasonable 
man  would  have  deemed  reasoiiahly  necessary  In  such  defence 

Plaintiff's  First  Assault— Plea  ol"  (ieneral  Issue  Only. — The  jury  are 
instriu-red,  tliat  under  the  })k'adings  in  this  case,  even  if  you 
lind  the  plaintiff  made  the  lirst  assault,  tliat  fact  cannot  he  con- 
sidered by  the  jury  as  a  justification  of  the  conduct  of  the 
defendants,  if  you  find,  from  the  evidence,  that  they,  or  either 
of  them,  also  made  an  assault  upon  the  plaintiff.  In  such  case, 
the  plaintiff's  first  assault  can  only  be  considered  in  mitigation 
of  damages. 

The  court  instructs  the  jury,  that  under  the  pleadings  in  this 
case,  the  only  question  for  the  jury  to  determine  is,  whether  the 
defendants,  or  cither  of  them,  committed  an  assault  and  battery 
upon  the  person  of  the  plaintiff,  as  charged  in  the  declaration; 
and  if  you  find,  from  the  evidence,  that  the  defendants, or  either 
of  them,  committed  the  assault  and  battery  complained  of,  it 
cannot  1)6  claimed,  as  a  justification  for  such  assault  by  the  de- 
fendant or  defendants,  that  the  plaintiff  made  the  first  assault. 
1  Chitty  on  Plead.,  501;  2  Greenl.  Ev.,  §  95 

AidiusT,  Abetting,  Etc. — The  court  instructs  the  jury,  that  a  per- 
son who  encourages,  advises,  aids,  or  abets  an  unlawful  assault 
and  battery,  is  liable  for  all  the  damages  directly  resulting 
therefrom.  And  in  this  case,  if  the  jury  believe,  from  the  evi- 
dence, that  the  defendant,  A.  B.,  unlawfully  assaulted  and 
injured  the  plaintiflF,  as  alleged  in  the  declaration,  then,  if  the 
jury  further  believe,  from  the  evidence,  that  the  other  defend- 
ants, or  either  of  them,  aided,  abetted,  advised,  or  encouraged 
such  assault,  by  the  said  A.  B,,  the  jury  should  not  only  find  the 
said  A.  B.  guilty,  but  they  should  also  find  such  of  the  other 
defendants  guilty  as  they  believe,  from  the  evidence,  aided, 
abetted,  advised,  or  encouraged  the  commission  of  such  assault. 

The  jury  are  further  instructed,  that  if  several  persons  commit 
an  unlawful  assault  and  battery  upon  the  person  of  another, 
then  each  person  who  participates  in  such  assault  is  guilty,  ami 
liable  to  the  party  injured  for  all  the  damage  he  may  sustain  in 
consequence  of  such  assault. 


IN    CIVIL    ACTIONS.  381 

And  if  any  one  incites,  advises,  or  encourages  an  nnlawful 
assault  and  battery,  then  he  is  also  liable  as  principal,  and  to  the 
same  extent  as  though  he  had  actually  particij>ated  in  commit- 
ting the  assault,  and  inflicting  the  injury.  Cooley  on  Torts,  133, 
125;  Barden  vs.  Felrh,  109  Mass.,  154;  2  Hill,  on  Torts,  293. 

The  jury  are  instructed,  that  when  several  persons  unite  in  an 
act,  which  constitutes  a  wrong  to  another,  intending  at  the  time 
to  commit  the  act,  or  do  it  under  circumstances  which  fairly  show 
that  they  intend  the  consequences  which  followed,  then  the  law 
will  compel  each  to  bear  the  responsibility  of  the  misconduct  of 
all,  and  the  party  injured  is  at  lilierty  to  enforce  his  remedy 
against  all,  or  against  any  one  or  more  of  the  number.  Pcige  vs. 
Freeman,  19  Mo.,  1:21;  ^Y^i<J]^t  vs.  Lathrop,  2  Ohio,  33; 
Turner  vs.  Illtchcocl'.,  20  la.,  310. 

Evil  Intent  or  Negligence  Keqnh-ed. — The  court  instructs  the  jury, 
that  the  defendant  ought  not  to  be  found  guilty  in  this  action, 
unless  the  jury  believe,  from  the  evidence,  that  the  defendant, 
in  inili(;ting  the  injury  complained  of,  was  guilty  of  some  wrong 
or  evil  intent,  or  want  of  care  and  prudence;  and  if  the  jury 
l)elieve,  from  the  evidence,  that  the  defendant  struck  the  blow 
without  any  wrong  or  evil  intent,  or  want  of  reasonable  care  and 
prudence,  they  should  find  the  defendant  not  guilty. 

If  the  jury  believe,  from  the  evidence,  that  the  defendant 
struck  the  plaintiff,  under  an  honest  belief  that  the  blow  was 
necessary  in  self-defense,  and  to  prevent  great  bodily  harm  to 
himself,  and  that  the  circumstances  were  such,  at  the  time,  as  to 
cause  a  reasonably  prudent  and  courageous  man  to  entertain  such 
belief,  and  to  apprehend  such  harm,  then  the  jury  should  find 
the  defendant  not  guilty,  2  Addison  on  Torts,  §  790;  Cooley 
on  Torts,  1(34.     Paxton  vs.  Boyer,  67  III,  132. 

Expelling  Trespasser. — The  jury  are  instructed,  that  no  one  has 
a  right  to  go  upon  the  premises  of  another,  even  though  it  be  his 
ofiice,  store,  or  place  of  business,  after  the  owner  has  forbidden 
him  to  do  so. 

The  jury  are  further  instructed,  as  a  matter  of  law,  that  if  a 
]>ei'son  enters  ujjon  the  possession  of  another,  and  is  requested  to 
depart  and  refuses  to  do  so,  the  owner  of  the  premises  may  law- 


382  INSTKl'CTIONS 

fullv  eject  liim  therefrom;  provided,  he  uses  no  more  force 
than  is  reasonably  necessary  for  that  purpose.  1  Hill,  on  Torts 
186;  Woodmcm  vs.  Jlowell,  45  111.,  8(57;  McCarttj  vs.  Fre- 
mont, 23  Cal.,  196;  Ilarrisoti  vs.  Harrison,  43  Vt.,  417; 
Addison  on  Torts,  793. 

Kepclliii!?  Force  by  Force. — The  court  instructs  the  jury,  that  if 
they  believe,  from  the  evidence,  that  the  defendant  assaulted 
and  beat  the  plaintiff  in  the  reasoua])ly  necessary  defense  of  his 
own  person,  after  having  been  lirst  assaulted  by  the  jilaiiitiff, 
and  that  he  nsed  no  more  force  than  was  apparently  necessary 
for  such  defense,  then  the  jury  should  find  the  issues  for  the 
defendant. 

The  jurv  are  further  instructed,  that  while  the  law  will  not 
excnse  or  justify  the  use  of  more  force  than  is  reasonably  neces- 
sary in  self-defense,  and  to  prevent  receiving  bodily  harm,  still, 
the  law  does  make  a  reasonable  allowance  for  the  iiilinuity  of 
hnman  judgment  nnder  the  influence  of  sudden  passion  or  prov- 
ocation, and  it  does  not  require  men  to  measure  with  mathemat- 
ical exactness,  the  degree  of  force  necessary  to  repel  an  assault. 
The  jurv  must  judge  from  all  the  facts  and  circumstances, 
proved  on  the  trial,  whether  the  defendant  did  assault  the  plain- 
tiff, and  whether  he  did  nse  more  force  and  violence  than  was 
reasonably  necessary  under  the  circumstances. 

In  Defense  of  Possession. — That  a  person  in  the  actual,  peace- 
able and  exclusive  possession  of  property  has  a  right  to  guard 
such  possession  by  using  force,  if  necessary,  for  that  purpose. 
And  in  this  case,  if  the  jury  find,  from  th(i  evidence,  that  at  the 

time  of  the  alleged  assault,  and  for months  before  that 

time,  the  defendant  was  in  the  actual,  peaceable  and  exclusive 
possession  of  the  ihousi)  where  the  disturbance  is  alleged  to 
have  occurred,  and  that  at  the  time  in  question  the  plaintiff  was 
attempting  and  endeavoring,  by  force,  to  enter  such  {house) 
against  the  will  and  orders  of  the  defendant,  then  the  defendant 
had  a  right  to  prevent  such  entry  by  using  force,  and  to  use  so 
nnich  force  as  was  reasonably  necessary  for  that  purpose. 

Self  Doli'iise— Excessive  Force. — Though  tlio  jury  should  believe, 
from  the  evidence,  that  the  pluintiif  made  the  first  assault  upon 


IN    CIVIL    ACTIONS.  383 

the  defendants,  or  some  one  or  more  of  tliem,  still,  if  they 
further  believe,  from  the  evidence,  that  the  defendant,  when  so 
attacked,  repelled  plaintiff's  assault  with  more  force  and  vio- 
lence, and  did  more  injury  to  tlie  plaintiff,  than  was  reasonably 
necessary  for  their  own  protection  from  injury  at  his  hands, 
then,  as  a  matter  of  law,  the  defendants  using  such  excessive 
force  would  be  guilty  of  assault  and  battery,  and  you  should  so 
find  by  your  verdict.  2  Addison  on  Torts,  §  792 ;  Adams  vs. 
Waggoner^  33  Ind.,  531. 

The  court  further  instructs  the  jury,  that  although  you  may 
believe,  from  the  evidence,  that  the  plaintiff  met  the  defend- 
ants in  a  threatening  attitude,  armed  with  a  club,  and  threatened 
that  he  was  going  to  use  the  club  over  their  heads,  still,  if  you 
further  believe,  from  the  evidence,  that  the  defendants  there  and 
then  disarmed  the  plaintiff,  and  put  it  out  of  his  power  to  do 
them  any  injury,  then,  as  a  matter  of  law,  it  was  the  duty  of  the 
defendants  to  have  desisted  from  any  further  violence  towards 
the  plaintiff.  And  if  you  further  believe,  from  the  evidence, 
that  the  defendants,  or  either  of  them,  used  more  force  and  vio- 
lence towards  the  plaintiff  than  was  reasonably  necessary  in  so 
disarming  the  plaintiff;  or  if  you  believe,  from  the  evidence,  that 
after  they  had  disarmed  him,  the  defendants,  or  either  of  them, 
committed  any  further  assault  and  battery  upon  the  plaintiff, 
than  was  necessary  for  their  own  protection,  then  such  defend- 
ants would  in  law  become  the  aggressors,  and  you  should  find 
such  defendant,  or  defendants,  guilty. 

That  while  the  law  makes  reasonable  allowance  for  the  infirm- 
ities of  human  judgment  under  the  influence  of  sudden  pas- 
sion, and  does  not  require  men  to  measure  with  mathematical 
exactness  the  degree  of  force  necessary  to  repel  an  assault,  still, 
it  does  require  all  men,  even  under  the  influence  of  sudden  pas- 
sion, to  exercise  reasonable  discretion  and  forbearance  in  the  in- 
fliction of  injuries  upon  the  person  of  another.  And,  in  this 
case,  though  the  jury  may  believe,  from  the  evidence,  that  the 
plaintiff  first  made  an  attack  upon  the  defendants,  or  some  one 
of  them,  still,  if  you  further  believe,  from  the  evidence,  that  in 
repelling  such  attack,  the  defendant,  or  either  of  them,  used  a 
deL''rcc  of  force  and  violence  towards  the  plaintiff  greater  than 


SS'-i  INSTRUCTIONS 

was  apparently  and  reasonably  necessary  to  repel  sneli  attack, 
and  thereby  caused  unnecessary  injury  to  the  iihiintill,  then  it  is 
your  sworn  duty,  as  jurors,  to  find  a  verdict  of  guilty  against 
such  one,  or  more,  of  the  defendants  as  you  find,  from  the  evi- 
dence, took  part  in  using  such  excess  of  force  and  violence. 

Although  the  jury  may  believe,  from  the  evidence,  that  the 
plaintiff  caught  hold  of  the  defendant,  and  was  about  to  strike 
or  injure  Iiim  with  a  {hatchet),. stiU,  if  the  jury  further  believe, 
from  the  evidence,  that  the  defendant  used  more  force  and  vio- 
lence, tlian  M'as  apparently  and  reasonably  necessary  to  prevent 
injury  to  himself,  then  such  excess  of  force  would  be  unhiwful, 
and  the  defendant,  as  to  such  excess,  would  be  guilty  of  an  un- 
lawful assault  ujion  the  plaintiff. 

Drimkeniiess  no  Justification. — Although  the  jury  may  l)elieve, 
from  tlie  evidence,  tluvt  the  defendant  was  drunk  at  the  time  he 
assaulted,  and  kicked,  and  struck,  the  plaintiff,  if  such  assault- 
ing, kicking  and  striking  have  been  ju'oved,  still,  the  fact  of 
drunkenness  alone  would  be  no  excuse  or  justification  for  such 
assault. 

Words  of  Provocation— Mitig^ation  of  Damages. — That  while  words 
of  provocation  do  not  justify  an  assault  and  battery,  they  may 
properly  be  considered  in  mitigation  of  damages;  and  if  the 
jury  believe,  from  the  evidence,  that  just  before  the  assault  com- 
plained of,  the  plaintiff  used  words  to  the  defendant  calculated 
to  provoke  a  breach  of  the  peace,  and  menaced  the  defendant 
with  his  fists,  then  such  facts  and  circumstances  may  be  consid- 
ered by  the  jury  in  mitigation  of  damages,  in  case  they  find  the 
defendant  guilty.  1  Hill,  on  Torts,  185;  Keijes  vs.  Devlin,  3d 
E.  D.  Smith,  518 ;  Ireland  vs.  Elliott,  5  Clarke  (la.),  478 ;  Suggs 
vs.  Anderson,  12  Ga.,  4(!1. 

Words  of  Provocation  no  Justification. — If  the  juiy  believe,  from 
the  evidence,  that  the  defendant  committed  the  assault  and  bat- 
tery complained  of,  in  anger,  caused  by  words  spoken  by  the 
plaintiff;  tlicn  the  jury  are  instructed,  as  a  matter  of  law,  that 
words  *alone  do  not  excuse  or  justif}'  an  assault  and  l)atteiy ;  they 
can  onlv  go  in  mitigation  of  damaires. 

I/O  c  o 


IN    CIVIL    ACTIONS.  385 

If  the  jury  believGj  from  the  evidence,  that  the  plahitiff,  im- 
niediately  before  the  assault  complained  of,  used  violent  and 
abusive  language  to  and  concerning  the  defendant,  and  menaced 
and  threatened  him  with  personal  injury,  then  these  facts  are 
proper  to  be  taken  into  account,  with  all  the  other  evidence  in 
the  case,  in  assessing  the  plaintiff's  damages,  if  they  find  the  de- 
fendant guilty. 

Preponderance  of  Evidence  Sufficient. — That  in  this  action,  the  f)lain- 
tiff  is  only  required  to  make  out  his  case,  by  a  preponderance  of 
evidence,  to  entitle  him  to  recover;  and  any  of  the  evidence  in 
the  case,  either  circumstantial  or  positive  and  direct,  which  tends 
to  produce  belief  in  the  mind  of  the  jury,  is  proper  to  be  con- 
sidered by  them,  in  determining  whether  or  not  the  defendant 
is  guilty.     Miller'  vs.  Balthasser,  78  111.,  302. 

FALSE    IMPKISONMENT. 

What  Constitutes. — The  court  instructs  the  jury,  that  in  order 
to  sustain  a  charge  for  false  imprisonment,  it  is  not  necessary 
for  the  plaintiff  to  show  that  the  defendant  used  violence  or  laid 
hands  on  him,  or  shut  him  up  in  a  jail  or  prison;  but  it  is  suffi- 
cient to  show  that  the  defendant,  at  any  time  or  place,  in  any 
manner  restrained  the  plaintiff  of  his  liberty,  or  detained  him 
in  any  manner  from  going  Avhere  he  wished,  or  prevented  him 
from  doing  what  he  wished;  provided, this  is  done  without  legal 
authority,  as  explained  in  these  instructions.  Cooley  on  Torts, 
169;  Brushaher  \&.  Stagemayin,  22  Mich.,  266;  2  Addison  on 
Torts,  697;  Hawk  vs.  Eidgway,  23  111.,  473;  Bonesteel  \'&. 
Bonesteel,  28  Wis.,  245. 

If  the  jury  believe,  from  the  evidence,  that  the  defendant  met 
the  plaintiff  at  S.,  and  took  the  plaintiff  into  his  custody,  and 
there  kept  him,  and  brought  him  to  M.  against  his  will,  and 
offered  to  deliver  him  into  the  custody  of  the  sheriff,  then  the 
defendant  is  guilty  as  charged  in  the  declaration,  and  the  jury 
should  find  for  the  plaintiff;  unless  the  jury  further  find,  from 
the  evidence,  under  the  instructions  of  the  court,  that  the  de- 
fendant was  warranted  in  law  in  making  such  arrest,  as  explained 
in  these  instructions.     Hatch  vs.  Ridytvay,  33  111.,.  473. 

The  jury  are  instructed,  that  to  constitute  an  arrest  and  im- 
prisonment, it  is  not  necessary  that  the  party  making  the  arrest 

25 


3St)  INSTRUCTIOXS 

should  actually  use  violence  or  force  towards  the  party  arrested, 
or  that  he  should  even  touch  his  hody.  If  he  profess  to  have 
authority  to  make  the  arrest,  and  he  commands  the  person,  hy 
virtue  of  such  pretended  authority,  to  go  with  him,  and  the  per- 
son obey  the  order,  and  they  walk  together  in  the  dii-ection 
pointed  out  by  the  person  claiming  the  right  to  make  the  arrest, 
this  is  an  arrest  and  imprisonment  within  the  meaning  of  the 
law.     2  Addison  on  Torts,  §  799;  Cooley  on  Torts,  169. 

In  order  to  constitute  an  arrest,  an  a(;tual  laying  on  of  the 
hands,  or  personal  violence,  is  not  nei;essary;  it  is  simply  neces- 
sary that  the  arrested  party  be  within  the  control  of  the  officer 
or  other  person  making  the  arrest,  and  sulnnits  himself  to  such 
control,  in  consequence  of  some  claim  of  right  to  make  the 
arrest,  or  threat  to  make  it,  by  such  officer  or  other  person. 

That  any  deprivation  of  the  liberty  of  another,  without  liis 
consent,  whether  it  be  by  actual  yiolence,  threats,  or  otherwise, 
constitutes  an  imprisonment  within  the  meaning  of  the  law. 

Who  Liable  as  Joint  Trespassers. — The  court  instructs  the  jury, 
that  the  law  is,  that  all  parties  who  engage  in  making  an  illegal 
or  unlawful  arrest,  are  trespassers;  and  if  the  jury  believe,  from 
the  eyidence,  that  the  defendants,  or  either  of  them,  restrained 
the  plaintiff  of  his  liberty,  as  charged  in  plaintiff's  declaration 
and  without  authority  of  law,  as  explained  in  these  instructions, 
then  such  ])ersons  are  liable  to  the  plaintiff  in  this  action. 

If  the  jury  believe,  from  the  evidence,  that  the  defendants,  or 
either  of  them,  arrested  the  plaintiff,  as  charged  in  the  declara- 
tion, without  lawful  authority  for  making  such  arrest,  as  ex- 
plained in  these  instructions,  then  your  verdict  should  be  for  the 
plaintiff,  and  against  such  of  the  defendants  as  are  shown,  by  the 
evidence,  to  have  participated  in  making  the  arrest. 

If  the  jury  believe,  from  the  evidence,  that  A.  B.,  one  of  the 
defendants  and  he  alone,  assumed  the  immediate  control  and  de- 
tention of  the  j)laintiff  at  the  time  in  (]Ucstion,  still,  if  you  further 
believe,  from  the  evidence,  that  the  other  defendants,  or  any  of 
tliem,  were  then  present,  acting  in  coTicert  with  the  said  defendant, 
A.  B.,  and  were  wrongfully  inciting  him  to  arrest  or  imprison 
the  plaintiff,  then  such  other  defendant  or  defendants  will  be 


IN    CIVIL    ACTIONS.  387 

equally  liable  with  the  said  A.  B. ;  provided,  you  find  him  guilty, 
under  the  evidence  and  instructions  of  the  court. 


Whea  not  Liable  as  Joint  Trespasser. — Although  the  jury  may 
believe,  from  the  evidence,  that  the  defendant,  C,  proved  up  his 
claim  before  the  justice  of  the  peace,  as  testified  to  by  the  plain- 
tiff, still,  unless  you  further  believe,  from  the  evidence,  that  the 
said  C.  aided,  advised  or  assisted  in  the  arrest  of  the  plaintiff, 
then  you  should  find  the  said  C.  not  guilty,  unless  you  further 
find,  from  the  evidence,  that  since  the  arrest  he  has  approved  or 
adopted  the  acts  of  those  who  did  cause  it.  Cooley  on  Torts, 
129;  Avrill  vs.  Williams,  4  Denio,  295;  Abhott  vs.  Kimball, 
19  Vt.,  551;  Smjdacker  vs.  Brosse,  51  111.,  357. 

The  court  further  instructs  the  jury,  that  if  a  person  makes 
an  application,  in  good  faith,  to  a  justice  of  the  peace,  for  legal 
process,  for  a  supposed  just  claim,  and  then  attempts  to  prove  it 
up  before  the  justice,  and  does  no  more,  this  alone  will  not 
render  him  liable  for  the  errors  or  mistakes,  or  even  for  the 
malicious  acts,  of  such  justice. 

The  jury  are  instructed,  that  to  warrant  a  verdict  of  guilty 
against  the  defendants,  L.  and  R.,  the  jury  must  believe,  from 
t'.ie  evidence,  that  they  aided,  abetted,  encouraged  or  assisted  in 
making  the  arrest,  before  or  at  the  time  the  same  was  made,  or 
else  that  it  was  done  in  their  behalf  and  for  their  benefit,  and 
that  they  have  ratified  and  approved  of  the  ai-resf  since  it  was 
made ;  and  if  neither  of  these  things  appear  to  be  proved  by  a 
preponderance  of  the  evidence,  then  the  said  defendants,  L.  and 
R.,  should  be  acquitted. 

Part  of  Defendants  Only  Guilty— Form  of  Verdict.— If  the  jury  be- 
lieve, from  the  evidence,  under  the  instructions  of  the  court, 
that  some  of  the  defendants  are  guilty  of  the  trespasses  alleged 
in  the  declaration,  and  some  not  guilty,  then  the  jury  should 
find,  in  their  verdict,  in  favor  of  the  plaintiff  and  against  those 
of  the  defendants  who  are  so  proven  to  be  guilty,  and,  as  to  the 
other  defendants,  that  they  are  not 'guilty,  and,  in  either  case, 
mentioning  the  defendants  by  name. 


3S8  INSTRUCTIONS 

Good  Faith  in  Mitis^atlon  of  Damacres. — If,  from  tlie  evidence,  nndoi- 
tlie  instructions  of  the  court,  the  jury  find  the  defendants,  or 
any  one  of  them,  guilty,  as  charged  in  tlie  declaration,  still,  if 
you  further  find,  fi-om  the  evidence,  that  in  making  the  arrest 
complained  of,  such  parties,  in  good  faith  and  without  malice, 
were  only  pursuing  what  they  supposed  were  their  just  rights, 
by  legal  remedies,  then  this  fact  may  be  considered  by  the  jury 
in  fixing  the  amount  of  damages,  and  as  tending  to  show  that 
only  actual  damages  should  be  given. 

Exeuiplary  Damajres. — If  the  jury  find  the  defendants,  or  any 
of  them,  guilty  of  the  arrest  charged  in  the  declaration,  and  if 
you  further  find,  from  the  evidence,  that  such  arrest  was  mali- 
ciously and  wantonly  made,  then,  in  assessing  the  plaintiffs 
damages,  the  jury  may  give  what,  in  law,  are  called  exemplary 
or  vindictive  damages;  that  is,  such  damages  as  will  not  only 
give  the  plaintiff  compensation  for  the  damages  actually  suffered 
by  him,  but  will  also  afford  a  wholesome  example  to  others  in 
like  cases. 

The  court  instructs  the  jury,  that  if  they  believe,  from  the 
evidence,  that  said  defendants,  or  any  one  of  them,  at  the  time 
in  question,  injured  the  plaintiff,  and  put  indignities  upon  her 
person,  from  vindictiveness,  or  a  wanton  or  reckless  disregard  of 
lier  age  or  her  infirmities,  they  may  assess  exemplary  dam- 
ages against  the  defendants,  or  such  of  them  as  the  evidence 
shows  are  guilty,  as  charged  in  the  declaration. 

The  court  instructs  the  jury,  that  exemplary  or  vindictive 
damages  should  not  be  given  in  a  case  of  this  kind,  unless  the 
jury  find,  from  the  evidence,  not  only  that  the  defendants  are 
guilty,  but  also  that  they  acted  maliciously  or  wantonly,  and 
with  wrongful  intent,  nor  unless  all  the  defendants  against 
whom  a  verdict  is  rendered,  were  actuated  by  such  malice, 
wantonness,  or  evil  intent. 

[See  Measure  oj  Damages.] 


IN    CIVIL    ACTIONS.  389 


INJURIES    TO    PERSONAL    PROPERTY. 
NO  PLEA  OF  JUSTIFICATION  FILED, 

What  Constitutes  Trespass,  Etc. — The  court  instructs  the  jury,  that 
the  gist  of  this  action  is  tlie  unlawful  (taking  and  carrying  away 
of  the  personal  property  of  the  plaintiff,  from  his  possession,  hy 
the  defendant);  and  if  the  jury  believe,  from  the  evidence,  that 
at  the  time  of  the  alleged  trespass,  the  plaintiff  was  the  owner 
of  the  property  in  question,  and  had  it  in  his  possession,  and 
that  the  defendant,  without  the  consent  of  the  plaintiff,  and 
against  his  will,  took  the  property  from  the  possession  of  the 
plaintiff  and  converted  the  same  to  his  own  use,  then  the  jury 
should  find  the  issues  for  the  plaintiff. 

What  Possession  Sufficient. — The  court  instructs  the  jury,  that  a 
trespass  to  personal  property  consists  in  the  unlawful  disturbance, 
by  force,  of  another's  possession  of  such  property,  and  in  order 
to  sustain  the  action  it  is  only  necessary  that  the  plaintiff  show 
that,  at  the  time  of  the  alleged  trespass,  he  was  the  general  owner 
of  the  property,  and  then  in  the  actual  possession  of  it,  either  by 
himself,  his  agent,  or  servant,  and,  further,  that  the  defendant 
unlawfully  interfered  with  the  property,  either  by  injuring  it, 
or  by  taking  it  and  carrying  it  away  without  lawful  right,  and 
against  the  will  of  such  owner.  Scott  vs.  Brysoii^  74  111.,  420; 
Cooley  on  Torts,  436;  Addison  on  Torts,  §  442;  1  Hill,  on 
Torts,  501. 

In  order  to  maintain  an  action  for  trespass  to  personal  prop- 
erty, it  is  sufficient  if  the  evidence  shows  that  the  plaintiff  had 
what  is  called  a  special  property  therein,  together  with  the 
actual  possession  of  the  property,  and  a  right  to  such  possession ; 
and  that  the  defendant  unlawfully,  and  without  right,  interfered 
with  or  disturbed  such  possession,  either  by  injuring  the  prop- 
erty or  by  taking  it  and  carrying  it  away,  against  the  will  of  the 
person  so  in  possession.  Miller  vs.  Kirhy,  74  111.,  242 ;  Cooley 
on  Torts,  436 ;  Addison  on  Torts,  §  442 ;  1  Hill,  on  Torts,  501. 

Possession  by  Agent. — If  the  jury  believe,  from  the  evidence, 
that  at  the  time  of  the  alleged  trespass  the  plaintiff  was  the 


390  INSTRUCTIONS 

owner  of  the  (properft/)  iu  questit)n,  and  was  in  the  possession 
of  it,  hv  himself,  his  agent,  or  servants,  and  that  the  defendant 
took  and  cai-ried  away  said  property,  and  converted  it  to  his  own 
use,  as  alleged  in  the  declaration,  then  the  jury  should  find  the 
defendant  guilty. 

If  the  jury  believe,  from  the  evidence,  that  at  the  time  of  the 
alleged  trespass  the  plaintiff  was  the  owner  of  the  {animal) 
in  controversy,  and  that  the  same  was  in  the  actual  possession 
of  his  {brother),  as  his  agent  or  servant,  then  the  possession  of 
the  (hrothei")  was  the  possession  of  the  plaintiff;  and  if  the  jury 
further  believe,  from  the  evidence,  that  while  the  property  was 
so  in  the  possession  of  the  plaintitf,  the  defendant  took  and 
carried  it  away,  as  charged  in  the  declurution,  the  jury  should 
find  the  defendant  guilty. 

Possession  as  Against  a  Wrous?-Doer. — That  a  person  whcj  is  in  the 
actual  peaceable  and  exclusive  possession  of  personal  property, 
without  showing  any  other  right,  has  a  sufficient  title  in  the 
property  to  nuii'.itain  trespass  against  one  who,  with  force,  inter- 
meddles with  such  possession  without  showing  any  right  or  title 
to  the  property,  or  to  the  possession  thereof.  Cooley  on  Torts, 
43G;  Addison  on  Torts,  §  442;  Scott  vs.  Bryson,  74  III,  420; 
Miller  xs.Jurbf/,  74  111.,  242. 

Special  Property  Defined.  —The  court  instructs  the  jury,  as  regards 
the  term  "special  property,"  that  a  person  who  is  not  the  gen- 
eral owner  of  personal  pro])erty,  but  has  it  in  his  possession, 
with  the  right  to  such  possession  for  the  time  being,  even  as 
against  the  general  owner,  is  deemed  in  law  to  have  a  special 
property  in  the  property  so  in  his  possession,  and  such  a  person 
may  maintain  trespass  against  anyone  who  unlawfully,  with 
force,  interferes  or  meddles  with  such  possession. 

PLEA    OF    .TI'STIFICATION    FILED. 

Intent  Immaterial. — To  render  a  person  guilty  of  trespass  to 
personal  pro})erty  it  is  not  essential  that  he  should  intend  to  do 
a  wrongful  act.  It  is  enough  if  ]\v  wilfully  or  negligently  and 
unlawfully,  by  force,  interfere  with  personal  propei'ty  in  the 
actual,  ])eaceable  and  exclusive  possession  of  another,  without 
the  consent,  and  against  the  will,  of  the  latter. 


IN   CIVIL    ACTIONS.  391 

Acts,  Prima  Facie  Trespass. — The  law  is,  that  when  the  rights  of 
private  pro})erty  are  invaded  by  one  whose  acts  would  constitute 
a  trespass,  unless  he  is  protected  by  legal  authority,  then  it  is 
incumbent  uj)on  such  person  to  show,  by  a  preponderance  of 
evidence,  that  he  was  justified  by  legal  authority  to  do  the  acts 
complained  of;  and  if  he  is  unable  to  do  this,  he  must  be 
regarded  as  a  trespasser.  It  is  not  enough  that  such  a  person 
intended  to  perform  an  oflicial  duty,  but  authority  of  law  for  the 
act  complained  of  must  exist,  or  he  will  be  a  trespasser.  Lin- 
hlom  vs.  Ramsey,  75  111.,  246. 

Trespass,  Ab  Initio. — If  the  jury  believe,  from  the  evidence,  that 
before,  and  at  the  time  of  the  alleged  trespass,  the  plaintiff  was 
the  owner  of,  and  in  the  actual,  peaceable  possession  of  the 
{horse)  in  question,  and  that  the  defendant  F.,  against  the  will 
of  the  said  plaintiff,  took  the  {horse)  from  his  possession,  and 
(within  a  day  or  two  thereafter),  drove  and  used  the  said  {horse), 
for  his  own  pleasure  and  profit,  and  while  using  the  {horse),  wil- 
fully and  wantonly,  or  without  reasonable  care  and  caution,  drove 
the  said  {horse)  at  an  unreasonable  rate  of  speed,  and  overheated 
and  thereby  injured  the  said  {horse),  then  the  jury  should  find 
the  defendant  guilty  of  trespass  in  the  original  taking  of  the 
property;  although  the  jury  may  further  believe,  from  the  evi- 
dence, that  the  defendant  was  at  the  time  a  constable,  having  in 
his  hands  to  serve,  the  execution  introduced  in  evidence,  and  that 
he  took  said  {?torse)  by  virtue  of  said  execution. 

Justiflcation  by  au  Officer— Writ  of  Restitution. — The  court  instructs 
the  jur3%  as  a  matter  of  law,  that  the  papers  in  the  case  of  {M. 
JB.  vs.  J.W^,  in  the  justice's  court,  and  introduced  in  evidence 
in  this  case,  authorized  the  constable,  who  served  the  writ  of  res- 
titution in  that  case,  to  use  so  much  force  as  was  necessary  to  re- 
move the  plaintiff  in  this  suit,  his  family  and  property  from  the 
premises,  described  in  that  writ.  And,  if  the  jury  should  find, 
from  the  evidence,  that  the  premises,  described  in  that  writ,  are 
the  same  as  those  described  in  the  declaration  in  this  case,  and 
that  the  trespasses  complained  of  are  the  acts  done  in  execution 
of  said  writ,  and  that  the  constable  W.,  in  executing  the  writ, 


392  INSTUUCTIOXS 

used  no  more  ft)rce  than  was  necessary  in  roniovini^  tlie  plaintifl' 
and  his  family  and  <2;()ods  from  the  premises,  descrihed  in  the 
writ,  they  slionkl  tind  the  defendants  not  i^nilty. 

The  court  instructs  the  jury,  that  the  papers  in  the  case  of  {Jf. 
B.  vs.  ./.  IF!),  in  the  justice's  court,  and  introduced  in  evidence 
in  til  is  case,  authorized  tlie  constable,  who  served  the  writ  of  res- 
titution in  that  case,  to  use  so  much  and  no  more  force  than  was 
necessary  to  remove  the  plaintiff  in  this  suit,  his  family  aTid 
property  from  tlie  premises,  described  in  that  writ.  If  the  jury 
should  find,  from  the  evidence,  that  the  premises,  described  in 
that  writ,  are  the  same  as  those  described  in  the  declaration  in 
this  case,  and  that  the  constable,  W.,  in  executing  the  writ,  used 
more  force  than  was  necessary,  in  i-emoving  the  plaintiff  and  his 
family  and  goods,  and  thereby  unnecessarily  injured  the  plain- 
tiff or  his  property,  the  defendant,  15.,  would  not  be  guilty  of 
such  excess  of  force  or  injury,  unless  it  appears,  from  the  evi- 
dence, that  he  oi-dered,  advised  or  assisted  in  such  excess  of  force 
and  injury,  or  afterwards  approved  of  the  same. 

Proporfy  Taken  on  Exeeutum. — If  the  jury  believe,  from  the  evi- 
dence, that  before  the  execution,  introduced  in  evidence  in  this 
case,  came  into  the  hands  of  the  said  defendant,  F,,  the  plaintiff 
had  bought  the  property  in  question,  in  good  faith,  for  a  valuable 
consideration,  of  the  defendant  in  the  execution,  and  had  taken 
the  same  into  his  possession;  then,  if  the  jury  further  believe, 
from  the  evidence,  that  the  said  defendant,  F.,  acting  as  consta- 
ble, seized  and  took  said  property  from  the  possession  of  the 
plaintiff,  upon  said  execution,  he  would  be  guilty  of  trespass  in 
taking  said  property;  and  if  either  of  the  other  defendants  are 
shown,  by  the  evidence,  to  have  advised,  directed,  or  aided  the 
said  F.,  in  taking  the  said  property,  then  the  jury  should  find 
such  other  defendants  also  guilty  of  said  trespass,  ecpially  with 
the  said  F. 

[See  Replevin  and  Fraud  as  to  Creditors.] 

What  Constitutes  a  Levy. — The  court  instructs  the  jury,  that  to 
constitute  a  valid  levy  upon  personal  property,  it  nmst  be  with- 
iti  tlie  power  and  control  of  the  olficer  when  the  levy  is  maih^; 
a,:id  he  must  take  it  into  his  possession  within  a  reasonable  time 


IN    CIVIL    ACTIONS.  393 

thereafter;  and  when  the  character  of  the  property  will  admit 
of  it,  in  such  an  open,  public  and  unecjui vocal  manner  as  to  ap- 
prise the  public  that  it  has  been  taken  on  execution.  He  must 
so  deal  with  the  property,  in  order  to  constitute  a  good  levy,  as 
that  without  the  protection  of  the  execution, his  acts  would  make 
him  a  trespasser. 

That  to  render  a  levy  on  personal  property  complete,  the 
officer  must  do  some  act,  which,  if  he  was  not  protected  by  his 
writ,  would  amount  to  a  trespass;  if  a  delivery  bond  is  not  given, 
he  nuist,  to  affect  third  persons,  take  the  property  into  his  pos- 
session as  soon  as  it  can  conveniently  be  done. 

The  jury  are  instructed,  that  it  is  not  a  sufficient  levy  of  an 
execution  on  personal  property,  as  against  third  persons,  for  an 
officer  to  indorse  a  levy,  with  an  inventory  of  the  property,  on 
the  execution,  in  the  presence  of  the  judgment  debtor  while  the 
property  is  before  them ;  the  officer  must  also  take  the  property 
into  his  possession.     Ilavely  vs.  Lowry,  30  111.,  446. 

Levy  Invalid,  When. — The  court  further  instructs  the  jury,  that 
if  property  seized,  under  an  execution,  is  permitted  to  remain 
with  the  defendant  for  an  unreasonable  time,  after  the  levy,  with 
the  consent  of  the  creditor,  the  levy  will  be  deemed  fraudulent 
and  void,  as  against  a  subseqent  execution.  Davidson  vs.  Wal- 
dron,  31  111.,  120. 

That  the  law  will  not  sustain  a  levy  which  is  only  colorable, 
and  designed  to  shield  the  property  from  the  claims  of  other 
parties — and  in  this  case,  though  the  jury  may  believe,  that  the 
execution  in  question  was  levied,  on  tiie  property  in  controversy, 
at  the  time  indorsed  on  the  execution;  still,  if  the  jury  further 
believe,  from  the  evidence,  that  such  levy  was  not  made  in  good 
faith,  and  with  a  bona  fide  intention  of  satisfying  the  said  exe- 
cution out  of  said  property,  but  that,  with  the  knowledge  and 
consent  of  the  plaintiff's  in  the  execution,  the  said  levy  was  made 
for  the  purpose  of  covering  up  said  property,  and  keeping  it  for 
the  benefit  of  the  said  {defendant  in  execution),  then  such  levy 

was  absolutely  void,  as  against  the  other  creditors  of  the  said , 

and  the  jury  should  so  find,  in  determining  the  rights  of  the 
parties  in  this  suit. 


394  INSTKUOTIONS 

Officers  Selling  Growing  Crops. — If  tlio  jury  hclieve,  from  the 
evidence,  iiiicler  the  instructions  of  tlie  court,  that  the  defendant, 
F.,  was  guiUy  of  trespass,  in  maimer  and  form  as  aUeged  in  the 
declaration,  in  icNviiig  upon  and  sellini^  the  property  in  ques- 
tion, and  tliat  the  defendant,  !>.,  hought  the  property  at  such 
sale,  and  took  it  and  carried  it  away,  claiming  it  under  such 
sale,  then  B.  would  also  be  guilty  of  trespass  jointly  with  said 
F.,  although  such  taking  and  currying  away  was  done  at  a  sub- 
sequent time. 

If  the  jury  believe,  from  the  evidence,  and  under  the  instruc- 
tions of  the  coiu't,  tliat  the  defendants,  or  either  of  them,  levied 
upon  and  sold  the  property  in  question,  and,  in  so  doing  were 
guilty  of  trespass,  as  charged  in  the  plaintiff's  declaration,  and 
that  the  defendant,  B.,  after  the  sale,  entered  on  the  premises 
described  in  the  jilaintiff's  declaration,  and  carried  avray  corn, 
wheat  and  oats  grown  thereon,  claiming  the  same  under  such 
sale,  then  the  jury  should  find  the  said  defendant  B.  equally 
guilty  with  the  other  defendants  who  are  shown,  by  the  evi- 
dence, to  have  conducted,  nnxnaged,  aided  or  advised  said  sale. 

Landlord  Liable— Seizure  Under  Distress  Warrant. — The  court  in- 
structs the  jnry,  that  if  an  otHc-er,  in  executing  a  distress  war- 
rant, seizes  the  property  of  a  stranger,  and  the  landlord  ratifies 
the  act,  and  retains  the  property,  after  knowledge  of  the  facts, 
he  will  thereby  render  himself  liable  for  the  trespass  committed 
by  the  officer.     Becker  vs.  Du  Pree,  75  111.,  ICT. 

It  is  a  i-ule  of  law%  that  where  one  person  does  an  act  profes- 
sedly for  the  benefit  of  another,  and  as  acting  for  him,  l)Ut  with- 
out any  previous  authority  whatever,  from  such  other  person,  to 
do  the  act,  if,  after  the  act  is  performed,  the  person  for  whose 
benefit  it  was  done,  with  full  knowledge  of  all  the  facts,  adopts 
and  ratifies  the  act,  by  availing  himself  of  the  benefits  accruing 
to  himself  therefrom,  he  will  be  liable  to  all  the  consequences 
to  the  same  extent  as  though  he  had  fully  authorized  the  act 
before  it  was  done. 

When  Landlord  not  Liable. — The  court  instructs  the  jury,  that 
the  delivery  of  a  distress  warrant  to  an  officer,  with  direction  to 
execute  it,  will  not  alone  render  the  landlord  liable  for  the  un- 


IN    CIVIL    ACTIONS. 


395 


authorized  and  unlawful  acts  of  the  officer  and  his  assistants; 
and,  in  the  absence  of  proof  to  the  contrary,  it  will  not  be  pre- 
sumed that  the  landlord  directed  the  officer  to  seize  the  property 
of  any  person  other  than  the  tenant  named  in  the  warrant. 

The  jury  are  further  instructed,  that  if  an  officer  executing  a 
distress  warrant  seizes  the  property  of  a  stranger,  without  the 
knowledge  or  consent  of  the  landlord,  the  landhjrd  will  not  be 
liable  as  a  trespasser  for  the  acts  so  done,  unless  he,  in  some 
manner  with  knowledge  of  the  facts,  approve  and  ratify  the  act 
after  it  is  done. 

Exemplary  Damages.— If,  from  the  evidence,  under  the  instruc- 
tions of  the  court,  the  jury  find  the  defendant  guilty,  as  charged 
in  the  declaration,  then,  if  the  jury  further  find,  from  the  evi- 
dence, that  the  taking  of  the  property  was  done  under  such  cir- 
cumstances, or  in  such  a  manner,  as  evinced  a  disposition  on  the 
part  of  the  defendant  to  maliciously  and  wantonly  possess  him- 
self of  such  property,  regardless  of  the  plaintiff's  right  thereto, 
then  the  j  ury  are  not  confined  in  their  estimate  of  damages  to 
the  actual  value  of  the  property  taken,  but  tliey  may  assess,  in 
addition  thereto,  such  punitive  or  exemplary  damages,  by  way 
of  punishment  to  the  defendant,  as  to  the  jury  shall  seem  just 
and  proper,  in  view  of  all  the  evidence  in  the  case. 
[See  Measure  of  Damages.] 

TRESPASS    ON    KEAL    ESTATE. 

Actual  Possession  Sufficient,  Etc. — The  court  instructs  the  jury, 
that  a  person  in  the  actual  and  peaceable  possession  of  land, 
will  be  presumed  to  be  the  owner,  in  the  absence  of  any  proof 
of  title,  and  he  may  maintain  trespass  against  any  one  who 
w^-ongfuUy  invades  liis  possession. 

That  although  possession  of  land  may  have  been  acquired 
wrongfully  by  the  plaintiff,  this  will  not  justify  even  the  owner 
of  the  property  in  entering  and  taking  possession  forcibly, 
against  the  will  of  the  person  in  possession.  Cooley  on  Torts, 
326;  III.,  etc.,  vs.  Oohb,  82  111.,  183;  Austin  vs.  Bailey,  37  Vt., 
219;  III.  &  St.  I.  Rd.  Go.  vs.  Cobb,  68  111.,  53;  Tan  Auken 
vs.  Munroe^  38  Mich.,  725. 


306  INSTKICTIONS 

The  court  instructs  the  jury,  that  in  oivler  to  maintain  an 
action  for  trespass,  it  is  only  necessary  for  the  phiintiff  t(j  prove 
that  he  was  in  the  actual  and  peaceable  possession  of  tlie  pro})- 
ertv  upon  which  tlie  trespass  is  alleged  to  have  been  committed, 
and  that  the  defendants,  or  some  one  or  more  of  them,  unlaw- 
'fully  interfered  with  such  possession. 

The  court  instructs  the  jury,  that  a  person  in  the  actual, 
peaceable  possession  of  premises,  is  presumed  to  be  there  right- 
fiillv,  and  no  one,  not  even  the  owner  of  the  property,  has  a 
right  to  go  upon  the  premises  and  forcibly  eject  the  person  so 
in  possession,  or  remove  his  property  therefrom  against  his  will, 
unless  the  person  so  entering  has  some  legal  process  from  a  coui't 
of  competent  jurisdiction,  authorizing  him  so  to  do. 

Trespasser  by  Ratification. — The  court  instructs  the  jury,  as  a 
matter  of  law,  that  if  they  believe,  from  the  evidence,  that  be- 
fore and  at  the  time  of  the  alleged  trespass,  the  plaintiff  wi;s 
in  the  actual,  peaceable  possession  of  the  premises  in  question, 
and  that  at  the  time  alleged  some  person  professing  to  act  for 
and  in  the  interest  of  the  defendant,  W.,  in  the  absence  of  the 
plaintiff,  and  against  his  will,  broke  into  the  said  rooms  and 
removed  the  plaintiff's  effects  therefrom,  without  legal  authority 
so  to  do,  as  explained  in  these  instructions;  and,  further, that  im- 
mediately after  all  this  had  been  done,  the  defendant,  W.,  know- 
ing the  facts,  went  in,  and  by  himself,  or  his  agent,  took  posses- 
sion of  the  premises,  and  retained  such  possession,  this  would, 
in  law,  be  a  ratification  by  the  defendant,  W.,  of  the  acts  of 
such  other  parties,  and  he  would  be  liable  therefor  to  the  same 
extent  as  though  he  had  participated  in  the  acts  of  such  other 
parties. 

[See  Ratification.] 

Trespass  by  an  Agent. — The  jury  are  instructed,  that  the  law  is, 
that  what  (me,  does  by  an  agent  is  the  same  as  if  done  by  him- 
self; and  if  the  jury  believe,  from  the  evidence,  that  the  de- 
fendant, W.,  shortly  before  the  alleged  trespass,  employed  A.  B. 
as  his  agent  or  attorney  to  evict  the  plaintiff  fi-om  the  premises 
mentioned  in  the  declaration,  and  that  in  pursuance  of  that 
employment,  and   in  the  way  of  his  said  agency,  the  said  A.  B. 


IN    CIVIL    ACTIONS.  397 

took  any  steps  towards  getting  the  possession  of  said  property 

away  from  the  plaintiff,  then  the  defendant,  W,,  would  be  liable 

for  all  the  acts  of  the  said  A.  B.  in  attempting  to  obtain  such 

possession,  to  the  same  extent  as  if  he  had  done  the  same  acts 

himself. 

[See  Principal  and  Agent.] 

Entry  Under  Le^al  Process. — The  court  instructs  the  jury,  that 
this  is  an  action  against  three  defendants,  charging  a  joint  tres- 
])ass  on  real  estate,  and  if  the  jury  find,  from  the  evidence,  under 
the  instructions  of  the  court,  that  before,  and  at  the  time  of  the 
alleged  trespass,  the  said  defendant,  F.,  was  a  constable,  and 
had  in  his  possession,  to  execute,  the  execution  introduced  in 
evidence,  and  by  vii-tue  thereof  had  levied  upon  and  taken  in 
execution  the  crops  in  question,  and  at  the  time  of  the  alleged 
trespass  entered  upon  the  land  for  the  purpose  of  making  a  sale 
of  said  property,  by  virtue  of  said  levy,  and  that  the  defendants, 
T.  and  13.,  entered  upon  said  land  along  with  the  constable, 
for  the  purpose  of  attending  said  sale,  as  spectators  or  bidders 
upon  the  property,  then  the  defendants  are  not  liable  for  tres- 
pass in  this  suit,  unless  they  unnecessarily  injured  said  real  estate 
or  the  crops  growing  thereon,  or  other  property  situate  on  said 
premises. 

Trespasser  Ab  Initio. — The  jui-y  are  instructed,  that  a  person 
obtaining  lawful  and  peaceable  entry  into  the  premises  of  an- 
other, may  become  a  trespasser  from  the  beginning,  by  an  abuse 
of  the  privilege  for  which  he  professed  to  enter;  and  such 
abuse  may  consist  in  doing  any  unlawful  act  or  thing  injurious 
to  the  occupier  of  the  premises  and  against  his  will.  Cooley  on 
Torts,  462;  1  Hill,  on  Torts,  105;  Sn.ydacher  vs.  Brosse,  51 
111.,  357;  P^irrington  vs.  Loring.,  7  Mass.,  388;  Kiniball  vs. 
Custer,  73  111.,  380. 

Although  the  jury  may  find,  from  the  evidence,  that  the 
defendant,  F.,  at  the  time  of  the  alleged  trespass,  was  acting  as 
sheriff  of  this  county,  and  that  he  had  in  his  hands  to  execute, 
the  execution  introduced  in  evidence,  and  that  he  entered  upon 
the  premises  in  question  for  the  purjjose  of  making  a  levy  upon 
the  personal  property  situate  thereon,  and  did  make  such  levy, 
and  took  and  carried  away  said  property,  professing  to  act 


398  iNSTRruTioxs 

liiider  said  cxpcntion,  still,  if  the  jurv  further  believe,  from  the 
evideuee,  tluit  the  plaintiff  was  the  owner  of  the  property,  and 
in  the  peaceable  possession  of  it  at  the  time,  and  that  the  de- 
fendant, F.,  in  making  said  levy  and  in  taking  away  said  prop- 
erty, did  not  act  with  reasonable  care  and  prudence,  but  handled 
the  same  in  a  rougli  and  grossly  negligent  mannei-,  and  that  the 
goods  were  materially  injured  thereby,  then  such  conduct  was 
an  abuse  of  the  process  of  court,  and  the  execution  furnishes  no 
protection  to  the  said  defendant,  F.,  for  the  acts  so  committed, 
and  the  jury  should  find  him  guilty  of  trespass  in  niakiuu;  the 
original  entry  upon  said  premises. 

Entry  Obtained  by  Fraud. — The  jury  are  instructed,  that  actual 
injurious  force  is  not  necessary  to  constitute  trespass  upon  the 
premises  of  another,  and  that  if  a  person  obtains  a  lawful  and 
peaceable  entry  into  the  dwelling-house  of  another,  and  then 
abuses  the  privilege  for  which  he  pi'ofessed  to  enter,  he  will  be  a 
trespasser  from  the  beginning.  Such  abuse  may  consist  in  doing 
any  act  or  thing  injurious  to  the  occupier  of  the  premises. 

And  in  this  case,  if  the  jury  believe,  from  the  evidence,  that  the 
said  A.  B.,  by  preconcert  with  the  other  defendants,  and  by  false 
pretenses  or  by  any  subterfuge,  obtained  an  entrance  into  the; 
dwelling-house  of  the  plaintiff,  and  after  such  entry,  contrary  to 
the  express  connnand,  or  against  the  known  wishes  of  the  ])lain- 
tiff's  {loife),  unbolted  and  opened  the  door  of  said  house,  for  the 
purpose  of  allowing  the  other  defendants  to  enter,  and  that  they 
did  then  and  there  enter,  then  the  entry  of  all  the  defendants 
was  a  trespass,  and  the  jury  should  find  the  defendants  guilty. 
Kimhall  ct  al.  vs.  Custer,  73  111.,  389. 

Joint  Trespassers. — The  court  instructs  the  jury,  as  a  matter  of 
law,  that  in  an  action  of  trespass,  if  it  ap})ears  that  a  trespass 
has  been  committed,  all  who  encouraged,  advised  or  assisted  in 
the  act  of  trespass,  are  equally  guilty,  whether  they  were  present 
and  took  part  in  the  act  or  not. 

In  this  case,  if  the  jury  believe,  from  the  evidence,  that  the 
trespass  complained  of  in  the  plaintiff's  declaration,  was  actually 
committed  by  some  one,  then  the  lav/  is,  that  any  and  all  persons 
who  encouraged,  advised,  or  assisted  iu  ^uch  trespass  are  e(jnally 


IN    CIVIL    ACTIONS.  399 

guilty  with  the  person  or  persons  who  actually  committed  the 
trespass,  by  going  upon  the  premises,  etc.  And  if  the  jury 
further  believe,  from  the  evidence,  that  any,  or  either  of  the  de- 
fendants encouraged,  advised  or  assisted  in  the  commission  of 
such  trespass,  they  should  find  such  person  or  2:)ersons  guilty. 

If  the  jury  believe,  from  the  evidence,  that  before,  and  at  the 
time  the  trespass  is  alleged  to  have  been  committed,  the  plaintiff 
was  in  the  actual  peaceable  possession  of  the  premises  described 
in  the  declaration,  and  that  in  his  absence,  and  without  his 
knowledge  or  consent,  some  person  broke  open  the  doors  and 
entered  the  premises,  and  removed  therefrom  the  personal  prop- 
erty mentioned  in  the  declaration,  without  right,  as  explained 
in  these  instructions,  then  the  person  so  breaking  into  said  2:)rem- 
ises,  and  every  other  person  who  commanded,  encouraged,  advised 
or  assisted  in  such  acts,  if  the  evidence  shows  that  there  were 
such  other  persons,  are  all  equally  guilty  of  trespass. 

Taking  Personal  Property,  Aggravation,  Etc. — That  while  this  is  an 
action  for  an  alleged  trespass  to  real  estate,  still,  the  taking  and 
carrying  away  of  the  personal  property  described  in  the  plain- 
tiff's declaration,  may  be  included  in  estimating  the  damages  for 
trespassing  on  the  real  estate;  provided,  the  jury  find,  from  the 
evidence,  that  the  defendants  are  guilty  of  trespassing  upon  the 
real  estate,  as  charged  in  the  declaration,  and  that  they  did  take 
and  carry  away  such  personal  property. 

TRESPASS    BY    DOMESTIC    ANIMALS. 

Note. — The  statutes  and  local  laws  and  customs  of  the  different  states, 
relating  to  domestic  animals  running?  at  large,  as  well  as  those  requiring 
the  owner  of  lands,  under  certain  circumstances,  to  protect  them  by  a 
sufficient  fence,  are  so  various  that  it  is  not  easy  to  classify  them.  Some 
of  these  laws  provide,  that  unless  the  owner  causes  his  lands  to  be  fenced 
with  such  a  fence  as  is  presci'ibed,  he  shall  maintain  no  action  for  trespasses 
committed  by  domestic  animals  on  said  land.  In  some  states  the  common 
law  requiring  the  owners  of  such  animals  to  keep  them  on  his  own  land,  is 
in  force.  In  other  states,  from  the  earliest  period,  domestic  animals  have 
been  allowed  to  run  at  large  in  the  highways,  and  on  unenclosed  lands,  either 
by  general  law  or  custom,  or  by  vote  of  the  township  or  county.  A  more 
common  provision  is  one  requiring  the  respective  owners  of  adjoining 
premises  to  build  and  maintain  one-half  of  the  partition  fence  between  them, 
the  respective  portions  being  determined  by  agreement,  by  prescription,  or 
by  an  order  of  the  fence  viewers. 


400  INST  K  r  C  T I O  N  s 

In  prcpariiifi:  instruotions  relating  to  those  matters,  no  attempt  has  been 
made  to  do  mure  tlian  to  funiiish  a  few  examples  of  the  most  f^eneral 
character. 

Animals  Not  Permitted  to  IJiin  at  Iiarit,'e. — The  court  iiustructs  the 
jury,  that  \>y  tlie  genenil  law  of  this  state  it  is  uiihiwl'nl  to  suffer 
or  permit  domestic  animals,  such  as  horses,  cattle,  sheep  and 
hogs,  to  run  at  large  in  the  public  streets  or  highways,  or  on 
other  unenclosed  lands,  (except  it  l)e  in  counties,  towns,  cities,  or 
villages  where  sucli  runuing  at  iai-ge  is  autliorized  by  a  vote  of 
the  legal  votcj-s  of  such  counties,  towns,  cities  or  villages). 

Owner  of  Lands  Not  Konnd  to  Fence, — The  jury  ai'c  further  in- 
structed, that  no  person  in  this  state  is  bound  to  fence  his  lands 
or  premises  against  domestic  animals,  such  as,  etc.,  excejjt  in 
those  counties,  cities  or  towns  where,  by  a  special  vote  of  the  legal 
voters  thereof,  such  animals  are  permitted  to  run  at  large.  And 
the  jury  are  further  instructed,  that  there  is  no  legal  evidence 
ill  this  case,  that  domestic  animals  could  lawfully  be  permitted 
to  run  at  large  in  the  town  of  S.,  at  the  time  when  the  trespasses 
complained  of  are  alleged  to  have  been  committed. 

If  the  jury  l)elieve,  from  the  evideiu-e,  that  at  the  time  of  the 
alleged  trespass  the  plaiiitil'f  was  in  the  actual  and  peaceable 
possession  of  the  premises  in  question,  and  that  the  defendant, 
at  the  same  time,  suffered  and  j:)ermitted  his  hogs  and  cattle  to 
run  at  large,  and  that  while  they  were  so  running  at  large  they 
entered  and  went  upon  the  plaintiff's  field,  as  charged  in  the 
declaration,  and  that  the  plaintiff  was  therel)y  damaged,  then  he 
is  entitled  to  recover  in  this  case,  whether  his  premises  were 
protected  by  a  good  and  sulHcicnt  fence  or  not. 

Animals  Lawfully Runnin??  at  Large— Land  Protected  by  Fence. — If  the 

jury  believe,  from  tlu^  evidence,  that  at  the  time  of  the  alleged 
trespasses,  the  ])laintiff'  was  in  the  actual  and  peaceable  posses- 
sion of  the  ])remises  in  question,  and  had  the  same  protected  by 
"a  good  and  sufficient  fence"  (or  hij  a  (jood  aiul  legal  fence  ^  as 
explained  in  these  instructions:)^  along  the  highway,  and  that 
the  defendant's  cattle  and  liogs  broke  and  entered  the  plaintiff's 
Held,  as  charged  in  the  declaration,  and  fuilher,  that  the  plain- 
tiff's cro])s  were  thereby  damaged;  then  the  jury  should  hud  the 


IN    CIVIL    ACTIONS.  401 

defendant  guilty;  and,  in  such  case,  it  is  immaterial  whether  the 
defendant  knowingly  permitted  the  animals  to  run  at  large,  or 
whether  they  escaped  from  his  pasture  into  the  highway  without 
his  fault. 

The  jury  are  instructed,  that  in  tliis  state,  cattle  and  horses 
{except  hulls,  etc.)  are  permitted  to  run  at  large  on  the  highways 
and  open,  unenclosed  grounds,  and  all  persons  leave  their  lands 
and  crops  exposed  to  the  intrusion  of  such  animals  at  their  peril. 
And  in  order  to  recover  for  injuries  done  to  crops,  by  cattle 
escaping  on  to  the  land,  where  such  crops  are  growing,  from  the 
highway,  or  from  unenclosed  lands  adjoining,  the  injured  party 
must  show  that  he  has  his  premises  surrounded  by  "a  good  and 
sufficient  fence"  {or  hij  good  and  laivf id  fence,  etc.). 

Thougli  the  jury  may  believe,  from  the  evidence,  that  the  de- 
fendant's cattle  went  upon  plaintiff's  land,  and  injured  the  crops 
thereon  growing,  as  stated  in  his  declaration;  still,  if  the  jury 
further  believe,  from  the  evidence,  that  the  said  premises  were 
not  enclosed,  by  "a  good  and  sufficient  fence"  {or  hy  a  good  and 
/awf id  fence,  etc.),  and  that  the  cattle  went  upon  said  premises, 
fi-om  the  adjoining  highway,  or  unenclosed  fields,  by  reason  of 
there  being  no  good  and  sufficient  fence,  around  plaintiff's  land, 
then  he  cannot  recover  in  this  case,  and  the  jury  should  find  the 
defendant  not  guilty. 

What  a  Sufficient  Fence— By  Statute.  —  The  jury  are  instructed,  in 
this  state,  fences  (four  and  one-half  feet  high,  in  good  repair, 
consisting  of  rails,  timber,  boards  and  posts,  hedges,  or  whatever 
the  fence  viewers  of  the  town,  where  the  fence  is  situated,  shall 
consider  equivalent  to  a  fence,  four  and  a  half  feet  high,  con- 
sisting of  rails,  timber,  or  boards  and  posts),  are  deemed  in  law 
leo;al  and  sufficient. 

Animals  Escaping  Tlirougli  Division  Fence. — The  court  instructs  the 
jury,  that  when  two  or  more  persons  have  enclosed  lands  adjoin- 
ing, each  owner  is  required  by  law  to  make  and  maintain  a  just 
proportion  of  the  division  fence  between  them,  and  the  part  and 
proportion  of  such  fence,  to  be  built  and  maintained  by  each, 
may  be  fixed  and  settled  by  the  agreement  of  the  parties  them- 

26 


4:02  INSTIiUCTIONS 

selves;  and  if  tlicy  are  unable  to  agree,  then  by  the  fence  view- 
ers of  the  town. 

The  jury  are  further  instructed,  that  when  the  owners  of  ad- 
joining lands  are  unable  to  agree,  concerning  the  proportion  of 
fence  to  l)e  made  or  maintained,  the  matter  may  be  submitted  to 
the  feuco  viewers  of  the  town,  as  j)r()vi(U'd  by  the  statute,  and 
their  decision,  when  made,  will  be  binding  upon  both  the 
parties. 

The  court  instructs  the  jury,  that  in  order  to  maintain  the  issues 
on  his  part,  the  plaintiff  has  only  to  prove  that  he  was  in  the 
possession  of  the  premises,  described  in  the  declaration,  at  the 
time  of  the  alleged  trespass,  and  that  the  cattle  and  hogs  of  the 
defendant  went  u|)()n  said  premises,  as  charged,  through  that 
portion  of  the  fence  which  it  was  the  duty  of  the  defendant  to 
nuike  and  maintain — if  the  evidence  shows  that  he  was  bound  to 
make  and  maintain  any  portion  of  said  fence,  as  explained  in 
these  instructions. 

If  the  jury  believe,  from  the  evidence,  that  tlie  cattle  and  hogs 
ot  the  defendant,  broke  and  entered  the  plaintiff's  field,  as  charged 
in  the  declaration,  then  it  is  wholly  immaterial  to  the  issues  in 
this  case,  -whether  the  plaintiff's  fence  along  the  highway,  or  his 
])oi-tion  of  the  division  fence,  was  in  good  or  bad  condition,  i)ro- 
vi(h'(|,  the  jury  further  believe,  from  the  evidence,  that  the  ani- 
mals in  question,  did  not  get  through  plaintiff's  fence  along  the 
highway,  nor  through  his  portion  of  the  said  division  fence. 

Bunion  of  Proof — That  the  l)urden  of  proving  the  trespasses, 
complained  of  in  plaintiff's  declaration,  is  upon  the  plaintiff,  and 
if  he  has  failed  to  prove  the  same,  or  any  of  them,  by  a  prepon- 
derance! of  ("Nidcncc,  then  the  juiw  nuist  lind  for  the  defendant, 
as  to  all  the  trespasses  wliich  tlie  plaintiff  has  failed  so  to  prove. 

Entry  Thron>,'Ii  Pljuntifl's  Portion  of  the  Fence. — If  the  jury  believe, 

from  the  evidence,  that  at  the  time  in  (jucstion,  there  was  a  line 
feiute  l)etween  the  lands  of  plaintiff  and  defendant,  that  a  por- 
tion of  said  fence  was  owned  by  each  of  the  parties,  then  each 
was  bound  to  keep  in  repair  his  own  portion  of  the  fence;  and, 
if  tlu;  jury  further  believe,  from  the  evidence,  that  tlic  ])laintiff 
did   not  keep  his  portion  in  good  and  sufficient  repair,  and  that 


IN    CIVIL    ACTIONS.  403 

by  reason  of  such  insufficiency,  the  animals  in  question  came 
upon  the  plaintiff's  land,  and  committed  the  trespasses  com- 
plained of,  then  the  defendant  is  not  liable  for  any  of  the  iii- 
jui-ics  occasioned  by  said  stock. 

If  the  jury  believe,  from  the  evidence,  that  the  division  fence 
in  question,  before  the  time  of  the  alleged  trespasses,  had  been 
divided  between  the  adjoining  owners  by  agreement,  and  the 
portion  of  the  fence  to  be  kept  in  repair  by  each  had  been  as- 
signed to  him,  so  that  each  had  a  designated  portion  of  the  fence 
to  build  and  keep  in  repair,  then  it  was  the  duty  of  the  defend- 
ant to  keep  up  such  a  fence  on  his  portion  of  the  line,  as  would 
turn  his  own  stock,  at  all  events.  And,  if  the  jury  further  be- 
lieve, from  the  evidence,  that  the  defendant  did  not  do  so,  and 
that  his  stock  got  upon  the  plaintiff's  land,  as  charged  in  the 
declaration,  through  that  portion  of  the  fence  which  the  defend- 
ant was  so  bound  to  build  and  repair,  and  then  injured  the  plain- 
tiff's crops,  then  tlie  jury  should  find  for  the  plaintiff. 

That  the  law  of  this  state,  requiring  the  owners  of  adjoining 
lands  that  are  enclosed  to  each  build  and  maintain  his  propor- 
tion of  the  division  fence,  is  intended  exclusively  for  the  benefit 
of  said  adjoining  owners;  and  in  this  case,  if  the  jury  believe, 
from  the  evidence,  that  tlie  cattle  of  the  defendant  broke  into, 
or  went  upon  the  lands  of  one  A.  B.,  adjoining  the  lands  of  the 
plaintiff,  and  from  thence  came  in  upon  the  lands  of  the  plain- 
tiff, and  injured  the  croj^s  there  growing,  then  the  defendant  is 
liable  for  such  injury,  whether  the  fence  between  the  plaintiff's 
land  and  that  of  the  said  A.  B.  was  a  good  and  sufficient  fence 
or  not.  Cooley  on  Torts,  339 ;  Lawrence  vs.  Comhs,  37  N.  H., 
331 ;  Lord  vs.  Wormwood,  29  Me.,  282;  Lyons  vs.  Merrick,  105 
Mass.,  71;  Cook  vs.  Morea,  33  Ind.,  497;  Aylesworth  vs.  Iler- 
rington,  17  Mich.,  417;  MeManus  vs.  Finan,  4  la.,  283. 

The  jury  are  instructed,  that  when  two  or  more  persons  have 
adjoining  lands  enclosed  in  one  common  field  by  outside  fences, 
and  have  no  division  fence,  then,  if  there  is  no  agreement  or 
arrangement  between  them  to  the  contrary,  each  person  is  bound 
to  keep  his  own  stock  upon  his  own  land,  and  if  he  does  not  do  so, 
and  injury  results  therefrom  to  an  adjoining  owner,  he  will  be  lia- 
ble in  trespass  therefor.  1  Addi.  on  Toi-ts,  §  379;  Bradhury  vs. 
Gilford,  53  Me.,  99;  Aylesworth  vs.  Harrington,  17  Mich.,  417. 


404  INSTRUCTIONS 


TROVER. 

By  General  Owner. — The  court  instructs  tlie  jury,  that  if  they 
believe,  from  the  evidence,  that  the  phiintiif  was  the  owner  of 
the  property  in  question,  and  entitled  to  the  possession  thereof, 
before  and  at  the  time  of  the  commencement  of  this  suit,  and 
that  while  he  M-as  so  entitled  to  such  possession,  and  before  the 
commencement  of  this  suit,  he  made  a  legal  denuind  of  the  de- 
fendant, for  the  property,  and  that  the  defendant  then  had  tlie 
property  in  his  possession,  and  refused  and  neglected  to  sur- 
render the  same  to  the  plaintiif  upon  such  demand,  this  would 
be  evidence  of  the  conversion  of  the  property  by  the  defendant, 
and  the  jury  should  find  for  the  plaintiff. 

By  One  Having  a  Special  Property. — If  the  jury  believe,  from  the 
evidence,  that  tlie  {animal)  in  question  was  not  the  property  of 
the  defendant,  but  was  the  property  of  one  A.  B.,  and  that  the 
said  A.  B.  had  placed  the  same  in  the  possession,  and  in  the 
care  and  custody,  and  under  the  control,  of  the  plaintiff  until  he 
should  call  for  the  same,  and  tliat  the  plaintiff,  at  the  time  of  the 
alleged  conversation,  was  entitled  to  the  possession  of  the  {animal) 
then  the  plaintiff  liad  such  a  property  in  it  as  will  enable  him 
to  sustain  this  action;  provided,  the  jury  further  find,  from  the 
evidence,  that  the  defendant  wrongfully  took  said  property  and 
converted  the  same  to  his  own  use,  as  charged  in  plaintiff's 
declaration. 

Suit  by  One  in  Possession. — That  when  a  person  is  in  the  riglitful 
and  peaceful  possession  of  property,  and  a  stranger,  or  person 
not  the  owner,  wrongfully  takes  it  from  him,  and  converts  it  to 
the  taker's  own  use,  then  the  person  in  possession  can  recover 
the  full  value  of  the  property  in  this  form  of  action  for  the 
wrong  done  —  his  possession  being  sufficient  evidence  of  title  in 
him  against  a  wrong-doer,  or  one  showing  no  right  or  title 
to  the  property.  Cooley  on  Torts,  445;  1  Hill,  on  Torts,  495 ; 
Craig  vs.  GUbrcfh,  47  Me.,  41<');  Moorman  vs.  Quick^  20  Ind., 
07;  Boivcn  vs.  Fenncr,  40  Barb.,  3S3. 


IN    CIVIL    ACTIONS.  405 

Though  the  j  urj  may  believe,  from  the  evidence,  that  the  said 
A.  B.  was  the  general  owner  of  the  property,  and  is  now  entitled 
to  the  possession  thereof,  still,  if  the  jury  further  believe,  from 
the  evidence,  that  before  the  time  of  the  alleged  conversion,  the 
said  A.  13.,  as  such  owner,  placed  the  said  property  in  the  pos- 
session, and  under  the  care  and  control,  of  the  plaintiff,  for  the 
purpose  of  having  the  same  fed  and  taken  care  of  by  him  {or 
stored  hy  him),  then  such  right  and  possession  by  the  plaintiff 
of  the  property  in  question  constitutes  a  sufficient  special  prop- 
erty therein  to  enable  the  plaintiff  to  maintain  this  suit;  pro- 
vided, the  jury  further  believe,  from  the  evidence,  that  before 
the  commencement  of  this  suit,  and  while  the  plaintiff  so  had 
it  in  his  possession,  the  defendant  wrongfully  took  the  prop- 
erty and  converted  it  to  his  own  nse,  within  the  meaning  of  the 
law,  as  explained  in  these  instructions. 

That  altliough  the  law  is,  that  to  entitle  the  plaintiff  to  recover 
in  this  form  of  action,  he  must  show  that  at  the  time  of  the 
alleged  conversion  he  was  the  general  owner  of  the  propertv, 
and  entitled  to  the  immediate  possession,  or  that  he  had  a  special 
right  or  interest  in  the  property,  with  an  immediate  right  of 
possession,  yet,  in  this  case,  if  the  jury  find,  from  the  evidence, 
that  the  general  ownei-ship  of  the  property  was  in  one  A.  B., 
but  that  the  plaintiff  had  the  actual  possession,  charge  and  con- 
trol of  the  property  at  the  time  of  the  alleged  conversion,  not 
as  the  agent  or  servant  of  the  said  A.  B.,  then  the  plaintiff  had 
such  a  property  in  the  {cmiinal)  as  will  enable  him  to  recover 
in  this  suit;  provided,  the  jury  find  the  defendant  guilty  of  the 
wrongful  conversion  of  the  property,  as  charged  in  the  declara- 
tion. Cooley  on  Torts,  4-1:2 ;  Stephenson  vs.  Little,  10  Mich., 
433;  Owens  y&.Weedman,  82  111.,  409;  Dudley  vs.  Ahier,  52 
Ala.,  572;  Staples  vs.  Smith,  48  Me.,  470;  1  Hill,  on  Torts,  495. 

What  Interest  Plaintiff  Must  Have. — The  court  instrncts  the  jury, 
that  this  is  what  is  known  in  law  as  an  action  of  trover,  or  trover 
and  conversion,  and,  to  entitle  the  plaintiff  to  recover,  the  jury 
nnist  believe,  from  the  evjdence,  that  the  plaintiff  was  the  abso- 
lute owner  of  the  property  in  question,  or  else  that  he  had  some 
special  interest  therein,  which  entitled  him  to  the  possession  of 
the  property  at  the  time  of  the  alleged  conversion. 


4()C)  INSTRUCTIONS 

Suit  by  Servant  or  Agent. — Tlio  jury  are  further  instructed,  that 
^vhcn  a  person  has  j)ersonal  property  in  liis  care  and  custody,  as 
the  servant  or  agent  of  the  owner,  and  the  property  is  taken 
from  the  possession  or  premises  of  the  owner  (or  strays  away, 
and  is  taken  up  by  a  person  not  the  ownei*),  then  the  duty  de- 
volving upon  the  servant  or  agent,  as  such  will  not  entitle  him  to 
maintain  an  action  of  trover  for  the  property.  Cooley  on  Torts, 
447;  Farmers'  Bk.  vs.  McKee,  2  Penn.  St.,  318. 

IJurden  of  Proof. — Tlie  court  instructs  the  jury,  that  in  order  to 
maintain  this  action,  the  plaintiff  must  prove,  by  a  preponder- 
ance of  evidence,  that  he  was  either  the  general  owner  oi'  the 
l>roperty  in  controversy,  and  lawfully  entitled  to  the  possession 
thereof  at  the  time  of  the  alleged  (conversion,  or  that  he  had 
some  special  interest  in  it  at  the  time  of  the  alleged  conver- 
sion, which  entitled  him  to  the  possession  of  the  property;  and 
if  tlie  jury  believe,  from  the  evidence,  that  at  the  time,  etc.,  the 
l)laintiff  was  not  the  general  owner  of  the  property,  and  had  no 
special  interest  in  it,  Itut  was  holding  it  as  tlie  mere  servant  or 
agent  of  the  owner,  then  they  must  iind  for  the  defendant. 

That  in  order  to  sustain  this  action,  tlie  plaintiff  must  show, 
by  a  preponderance  of  evidence,  that  at  the  time  he  demanded 
the  {animal)  from  the  defendant,  if  such  demand  has  been 
proved,  he  was  the  owner  of  the  property,  and  entitled  to  the 
immediate  possession  thereof,  or  that  he  had  some  right  or  in- 
terest in  the  same,  which  entitled  him  to  the  possession  of  it  at 
the  time;  and  if  the  jui-y  find,  fi-om  the  evidence,  under  the 
instruction  of  the  court,  that  he  has  failed  to  prove  either  of 
these  things,  by  a  i)r(!ponderance  of  evidence,  the  jury  should 
find  for  the  defendant.     Forth  vs.  Parsley,  82  HI.,  152. 

riaintiff  Must  Prove  Conversion. — That  to  warrant  a  verdict,  in 

this  case,  iui-  the  j.laintiff,  the  jury  must  find,  from  the  evidence, 
not  only  that  the  plaintiff  was  the  general  or  special  owner  of 
the  property,  with  the  right  to  immediate  possession  at  the  time 
of  the  alleged  conversion,  but  it  nmst  further  appear,  from  the 
evidence,  that  the  defendant  wrongfully  converted  the  property 
to  his  own  use. 


IN    CIVIL    ACTIONS. 


407 


Property  Lost— Negligence  of  Defendnnt. — Tf  the  jury  believe,  from 
the  evidence,  iiiuler  the  instructions  of  the  court,  that  the  de- 
fendant came  rio:;htf  ully  into  the  possession  of  the  property,  and 
while  he  held  it  so  in  possession,  and  before  any  demand  was 
made  on  him  for  it,  the  {animal)  was  accidentally  killed,  with- 
out any  wilful  intention  on  the  part  of  the  defendant  {or  that 
the  said  goods  were  lost  or  stolen  out  of  the  possession  of  the 
defendant),  though  he  may  have  been  guilty  of  negligence  in 
that  behalf,  then  the  plaintiff  cannot  recover  in  this  suit,  although 
the  jury  may  believe,  from  the  evidence,  that  a  demand  was 
made  by  the  plaintiff  upon  the  defendant  for  the  property  be- 
fore the  suit  was  commenced.  1  Addison  on  Torts,  §  4(57,  471; 
Cooley  on  Torts,  449 ;  Boiolin  vs.  Nye,  10  Cush.,  416. 

Demand  and  Refusal  Pi-inia  Facie  Evidence,  Etc. — The  jury  are  in- 
structed, tliat  when  one  person  has  property  of  another,  whether 
rightfully  or  wrongfully,  in  his  possession,  and  the  owner  is 
entitled  to  the  innnediate  possession  of  the  property,  then  a 
demand  lor  such  possession  by  the  owner  and  a  refusal  to  deliver 
the  property  by  the  one  so  having  it  in  possession,  is  prima 
facie  evidence  of  a  wrongful  conversion  of  the  property  to  his 
own  use  by  the  latter. 

« 
When  Demand  not  Necessary. — The  jury  are  further  instructed, 

as  a  matter  of  law,  that  while,  in  some  cases,  a  demand  by  the 
owner  for  the  possession  of  property  in  the  hands  of  another, 
and  a  refusal  to  deliver  the  same  by  such  other  person,  vi,  prima 
facie  evidence  of  a  wrongful  conversion  of  the  property  to  his 
own  use  by  the  person  so  having  it  in  his  possession,  still  such 
demand  and  refusal  are  never  essential  before  commencing  a 
suit  to  entitle  the  plaintiff  to  recover;  provided,  it  appears,  from 
the  evidence,  that,  before  the  commencement  of  this  suit,  the 
defendant  had  actually  converted  the  property  to  his  own  use, 
by  intentionally  killing  or  destroying  it,  or  by  selling  or  other- 
wise disposing  of  it  for  his  own  benefit,  and  so  as  to  deprive  the 
plaintiff  of  it  without  his  consent. 

What  Amounts  to  Conversion. — The    jury    are    instructed,    as    a 
matter  of  law,  that  when  the  property  of  one  person  comes 


408  INSTRUCTIONS 

rightfully  into  the  possession  of  another,  to  be  held  by  him  toni- 
porai-ily  tor  some  specific  purpose,  and  when  that  is  uccom- 
plisheil,  then  to  be  returned  to  the  owner,  if  the  person  so  taking 
possession  of  the  jiropcrty  wilfully  kills  or  destroys  it,  or  sells  it, 
or  otherwise  disposes  of  it,  for  his  own  use  and  benefit,  and  so 
as  to  deprive  the  owner  of  it  without  his  consent,  this,  if  proven, 
will  amount  to  a  wrongful  conversion  of  the  property,  and  no 
demand  for  the  possession  need  be  made  by  the  owner  before 
commencing  suit  to  recover  the  value  of  the  property. 

If  the  jury  find,  from  the  evidence,  that  before  and  at  the 
time  of  the  alleged  conversion,  the  plaintiff  was  the  owner  of 
the  proj^erty  in  (piestion,  and  entitled  to  the  immediate  posses- 
sion thereof,  and  that  while  the  plaintiff  was  such  owner  and 
entitled  to  such  possession,  and  before  the  commencement  of 
this  suit,  the  defendant  wrongfully  took  the  property  into  his 
possession,  and  that  while  the  property  was  so  in  his  possession 
the  {animal)  was  killed  {or  the  (joods  were  lost  or  stolen  front 
his  possession),  before  the  connnencement  of  this  suit,  this  will 
constitute  a  wrongful  conversion  of  the  pi'operty,  and  the  jury 
should  find  the  defendant  guilty;  and,  in  such  case,  it  is  wholly 
imuiatcrial  whether  the  plaintiff  made  a  demand  for  the  prop- 
erty before  commencing  the  suit  or  not.  1  Addison  on  Torts, 
§  471. 

Title  Claimed  by  Piirehase  from  tlie  Owner. — The  jury  ai"e  in- 
structed, that  as  between  the  parties  themstjlves,  the  title  to 
personal  property  passes  without  delivery  whenever  the  sale  is 
completed,  and  the  parties  intend  it  as  such.  An  agreement  to 
sell  an  article  l)y  weight  or  measure,  where  the  article  is  selected 
and  identified,  and  the  price  agreed  upon,  may  be  a  completed 
sale  without  <1(  livo-y,  if  the  parties  intend  it  as  such.  lienj.  on 
Sales,  §  311;  J^lfl'l/e  vs.  Varnnm,  20  Pick.,  280;  It'eed  vs.  JJur- 
gess,  34  111.,  lt)3;  Prescott  vs.  Loclce,  51  N.  II.,  94;  Russell 
vs.  CarrtJKjton,  42  X.  Y.,  118;  Morse  vs.  Sherman,  106  Mass. 
43(t;  Lester  vs.  East,  49  Ind.,  588;  Wilkinson  vs.  Holiday,  33 
Mich.,  38G;  McClunr/  vs.  Kdley,  21  la.,  508. 

That,  as  between  the  jiarties,  delivery  is  not  essential  to  the 
completion  of  a  sale  of  chattels.  If  the  sale  is  completed  and 
nothing  remains  to  be  done  but  to  deliver  the  pi'operty.  then  the 


IN    CIVIL    ACTIONS.  409 

purchaser  may  take  the  goods  at  any  time  after  the  sale;  pro 
vided,  he  takes  them  hefore  any  lien  attaches  in  the  hands  of 
the  vendor   and   the  transaction  is   conducted  in  good  faith. 
Cruikshank  vs.  Cogswell,  26  111.,  366. 

If  the  jury  believe,  from  the  evidence,  that  the  defendant 
agreed  to  sell,  and  did  sell,  the  {animal)  in  question  to  plaintiff 

for  S ,  and  that  it  was  agreed,  at  the  time,  that  he  should 

have  thirty  days  in  which  to  pay  the  money,  then  no  delivery 
was  necessary  to  vest  the  title  of  the  property  in  the  plaintiff. 

If  the  jury  believe,  from  the  evidence,  that  the  defendant 
bargained  and  sold  the  {animal)  in  question  to  the  plaintiff,  at 
a  given  price,  to  be  delivered  when  paid  for,  and  that  the  plain- 
tiff afterwards,  and  within  a  reasonable  time  thereafter,  and 
before  the  commencement  of  this  suit,  paid  the  purchase  price 
in  full,  or  paid  a  part  thereof,  and  tendered  to  the  plaintiff  the 
remainder,  and  then  demanded  the  possession  of  the  property, 
and  that  defendant,  upon  such  demand,  refused  to  deliver  pos- 
session, and  afterwards  sold  the  {animal)  to  another  person, 
without  the  consent  of  the  plaintiff,  then  the  plaintiff  is  entitled 
to  recover  in  this  suit. 

Tender. — The  jury  are  instructed,  that  a  tender  of  any  amount 
of  money,  if  proved,  in  this  case,  has  the  same  effect  on  the 
rights  of  the  parties  as  a  payment  of  the  same  amount  would 
have  had  if  made  at  the  same  time.     Benj.  on  Sales,  §  713. 

[/See  Tender.] 

Price  not  Paid— Ei^lit  to  Possession,  When. — The  court  instructs  the 
jury,  that  in  the  case  of  a  sale  of  personal  property,  at  a  stipu- 
lated price,  and  when  no  time  of  payment  is  agreed  upon,  the 
law  presumes  that  payment  is  to  be  made  at  the  time  of  delivery ; 
and  in  such  case,  until  the  purchase  price  is  paid,  no  such  title 
passes  to  the  purchaser  as  will  enable  him  to  maintain  trover 
against  the  vendor  for  the  conversion  of  the  property,  unless  there 
has  been  a  delivery  of  the  jiroperty  under  the  sale,  or  a  tender  of 
full  payment  has  been  made.  Benj.  on  Sales,  §  677;  South- 
western, etc.,  Co.  vs.  Plant,  45  Mo.,  517;  Scudder  vs.  Brad- 
hurry,  106  Mass.,  422;  Mich.,  etc.  Rd.  Co.  vs.  Fhlllijps,  60 
111.,  190. 


410  INSTRUCTIONS 

That,  in  the  case  of  a  sale  of  personal  property  for  cash, 
which  is  not  paid  at  the  time,  and  the  property  remains  with  the 
seller,  he  has  a  right  to  retain  possession  of  the  property  nntil 
he  is  paid  in  full  therefor,  and  if  the  purchase  price  is  not  paid, 
he  may,  after  demanding  payment  of  the  purchaser,  and  waiting 
a  reasonable  time  thereafter  for  payment  to  be  made,  sell  the 
property  to  another  person  without  rendering  himself  liable  to 
an  action  of  trover  therefor,  unless  such  payment  is  either  made 
or  tendered  in  full  before  such  sale  is  made. 

If  the  jury  believe,  from  the  evidence,  that  the  plaintiff 
bought  the  {horse)  in  question  from  the  defendant,  an<l  gave  his 
note  for  a  part  of  the  purchase  price,  and  that  the  defendant 
has  since  sold  the  note  to  a  third  person,  in  good  faith,  for  a 
valuable  consideration,  and  before  the  note  became  due,  then, 
for  the  purposes  of  this  suit,  the  jury  should  consider  the  case 
as  though  the  note  had  been  paid  and  the  {horse)  paid  for  in 
full  by  the  plaintiff. 

Temporary  Possession-  Not  Delivery,  Uheu. — That  in  the  case  of 
the  sale  of  personal  property,  when  the  possession  of  the  prop- 
erty is  not  transferred  at  the  time  of  the  sale,  it  is  not  enough 
to  constitute  delivery  of  the  property  that  the  purchaser  obtains 
the  temi)oi-ary  possession  or  control  of  the  property  for  a  spe- 
cific purpose.  To  have  the  effect  to  vest  the  title  in  the  purchaser 
in  such  a  case,  the  jury  must  believe,  from  the  evidence,  that 
the  possession  was  transferred  by  the  seller  to  the  purchaser 
with  the  intention  of  vesting  the  title  to  the  property  in  the 
purchaser,  under  the  contract  of  sale. 

Suit  Against  Warehousemen. — Tf  the  jury  believe,  from  the  evi- 
deiu;e,  that  at  the  time  of  the  alleged  conversion,  the  property 
in  controversy  was  the  property  of  the  plaintiffs,  and  that  they 
were  entitled  to  the  possession  of  it,  and  that  the  defendants 
then  had  the  same  in  their  possession;  and  if  the  jury  further 
believe,  from  the  evidence,  that  the  plaintiffs,  by  their  duly 
authorized  agents,  demanded  the  property  of  the  defendants, 
and  that  they  refused,  without  right,  as  explained  in  these 
instructions,  to  deliver  up  the  property,  this  demand  and  refusal 
is  prima  facie  evidence  of  a  conversion  of  the  property  by  the 
defendants  to  their  own  use. 


IN    CIVIL    ACTIONS.  411 

If  the  jury  believe,  from  the  evidence,  that  the  property  in 
controversy  belonged  to  the  plaintiffs,  and  that  they  were  en- 
titled to  the  possession  of  the  same,  at  the  time  of  the  alleged 
conversion  of  the  property;  and,  also,  that  the  plaintiffs  de- 
manded the  same  of  the  defendants,  before  the  commencement 
of  this  snit,  and  at  the  same  time  offered  to  pay  to  them  all  the 
freight,  storage  and  other  charges  which  had  accrned  npon  the 
property  in  question,  then,  if  the  jury  further  iind,  from  the 
evidence,  that  the  defendants  refused,  upon  such  demand,  to 
deliver  the  property  to  the  plaintiffs  unless  the  freight  and 
charges  upon  other  goods,  not  received  or  stored  by  the  defend- 
ants at  the  same  time  with  the  goods  in  question,  were  also  paid, 
then  these  facts  would  amount  to  a  wrongful  conversion  of  the 
property  by  the  defendants  to  their  own  use,  and  the  jury  should 
ffnd  the  defendants  guilty.     Edwd.  on  Bail.,  §  350,  351. 

Warehouseman's  Lien. — The  court  instructs  the  jury,  that  a 
warehouseman,  on  receiving  goods  in  the  regular  course  of  his 
business,  has  a  lien  upon  the  goods  for  any  advances  which  he 
may  have  made  to  the  carrier  for  the  carriage  of  the  goods,  and 
also  for  his  reasonable  charges  for  storage. 

And,  in  this  case,  if  the  jury  believe,  from  the  evidence,  that 
the  defendants,  A.  &  13.,  on  or  about,  etc.,  received  the  property 
in  question  in  the  regular  course  of  their  business  as  warehouse- 
men, and  paid  to  the  carrier  the  sum  of  $ ,  which  had 

accrued  for  the  carriage  of  the  goods,  and  afterwards  kept  the 
goods  in  store,  then  the  defendants  would  have  a  right  to  retain 
the  possession  of  the  goods  until  the  sum  advanced  by  them, 
and  all  proper  charges  for  storage,  was  paid  or  tendered.  Hale 
vs.  Barrett,  26  111.,  195. 

Tender— Waiver  of  Production  of  Money. — If  the  jury  believe,  from 
the  evidence,  that  the  plaintiffs  were  the  owners  of  the  property 
in  question  at  the  time  of  the  alleged  demand  and  tender,  and 
that  the  defendants  then  had  the  same  in  their  possession,  as 
warehousemen,  claiming  the  right  to  hold  the  property  until 
certain  charges  thereon  should  be  paid,  and  that  while  they  so 
held  the  goods,  and  before  the  commencement  of  this  suit,  the 
plaintiffs,  by  their  agent,  made  a  demand  on  the  defendants  for 


412  INSTRUCTIONS 

the  property,  and  then  offered  to  pay  the  sum  of  $ npon 

defendants'  claim  \i\nn\  said  goods,  and  that  the  sum  so  offered 
covered  all  that  wjis  then  due  to  defendants  for  storage  and  all 
other  charges  on  said  goods;  and,  if  the  jury  further  believe, 
from  the  evidence,  that  upon  such  demand  and  offer  tlie  defend- 
ants refused  to  surrender  the  property,  and  told  the  person 
making  such  demand  that  he  need  not  trouble  himself  to  take 
out  the  money  so  proposed  to  be  paid,  as  it  would  not  be  ac- 
cepted, nor  would  the  goods  be  delivered,  unless  plaintiffs  first 

paid  the  sum  of  S in  discharge  of  defendants'  claim  on 

the  goods,  then  this  was  a  waiver  of  the  necessity  for  producing 
and  exhibiting  to  the  defendants  the  money  so  proposed  to  be 
paid  in  order  to  constitute  a  good  tender  of  that  amount  for  tlie 
purposes  of  this  suit.  Benj.  on  Sales,  §  714 ;  Ilazzard  vs.  LoriiKj^ 
10  Gush.,  267;  2  Greenl.  Ev.,  §  603;  2  Pars,  on  N.  &  B.,  623. 
Tlie  debtor  has  no  right  to  insist  that  the  creditor  shall  admit 
that  no  more  is  due  in  respect  of  the  debt  for  which  tlie  tender 
is  made.  lie  may  exclude  any  presumption  against  himself  that 
he  admits  the  payment  to  be  only  for  a  part,  l)ut  he  can  go  no 
farther,  and  his  tender  will  not  be  good  if  he  adds  a  condition 
that  the  creditor  shall  acknowledge  that  no  more  is  due.  Benj. 
on  Sales,  §  722;  Bowen  vs.  Oweii^  11  Q.  B.,  131. 

[See  Tent/cr.J 

Measure  of  Damages— Suit  by  General  Owner. — If,  under  tlie  evi- 
dence and  the  instructions  of  the  court,  you  find  the  defendant 
guilty,  then  the  measure  of  the  plaintiff's  damages  will  be  the 
value  of  the  property  at  the  time  of  the  conversion,  and  six  per 
cent,  interest  thereon  since  that  date.  Teiineij  vs.  State  Banlc^ 
etc.,  20  Wis.,  152;  Hard  vs.  Iluhbell,  26  Conn.,  3S9;  Yater  vs. 
Mullen,  24  Ind.,  277;  Polk  vs.  Allen,  19  Mo.,  467;  Gutter  vs. 
Fanning,  2  la.,  580;  Repley  vs.  Bavis,  15  Mich.,  75. 

Damasres,  One  Having  Special  Property. — Thougli  the  jury  nwxx  be- 
lieve, fi'DUi  the  evidence,  that  the  defendants  are  guilty,  still. 
if  the  jury  further  find,  from  the  evidence,  and  under  the  in- 
structions of  the  court,  that  the  plaintiff  Avas  not  tlie  general 
owner  of  the  property,  nor  responsible  to  the  general  owner 
for  its  return,  but  only  had   a  S2)ecial    intL-rest  therein  as,  etc., 


IN   CIVIL    ACTIONS.  413 

then  he  can  only  recover  the  vahie  of  such  special  interest. 
And  if  the  jury  further  find  that  there  is  no  evidence  before 
them  tending  to  show  the  value  of  such  special  interest,  then  the 
jury  can  only  give  a  verdict  in  favor  of  the  plaintiff  for  nominal 
damao-es. 

Damages,  Lieu  Holder. — Though  the  jury  may  believe,  from  the 
evidence,  under  the  instruction  of  the  court,  that  the  defendants 
are  guilty  of  a  wrongful  conversion  of  the  property  in  question, 
still,  if  the  jury  further  believe,  from  the  evidence,  that  the 
plaintiff  was  not  the  general  owner  of  the  property,  but  only  had 
a  lien  thereon  to  secure  an  indebtedness  due  to  him,  then  he  can 
only  recover  the  amount  of  such  lien,  including  princij^al  and 
interest;  provided,  you  find,  from  the  evidence,  that  the  value  of 
the  property  exceeds  the  ainount  of  such  indebtedness.  And  in 
case  the  jury  find  the  amount  of  such  lien  to  be  greater  than  the 
value  of  the  property,  then  the  measure  of  damages  will  be  the 
value  of  the  property  at  the  time  of  the  conversion,  with  six  per 
cent,  interest  thereon. 

Suit  Against  a  Lieu  Holder. — If  the  jury,  from  the  evidence,  under 
the  instructions  of  the  court,  find  the  defendants  guilty,  then 
they  may  assess  the  plaintiff's  damages  at  the  value  of  the  prop- 
erty at  the  time  the  demand  was  made,  with  interest  thereon  at 
the  rate  of  {six)  per  cent,  per  annum  from  that  time,  less  what- 
ever amount  the  jury  find,  from  the  evidence,  was  due  to  the 
defendants  for  {freight  and  charges). 

Price  Paid  Not  Conclusive  Evidence  of  Value. — The  jury  are  in- 
structed, that  the  price  paid  or  agreed  to  be  paid  for  the  {horse) 
in  question  is  not  conclusive  evidence  of  the  value  of  the  {horse). 
The  jury  should  fix  the  value  of  the  property  from  a  considera- 
tion of  all  the  evidence  in  the  case  l^earing  upon  that  point. 

Price  Paid  Prima  Facie  Evidence  of  Value. — That  while  the  price 
paid  for  the  property  in  question  is  not  conclusive  evidence  of 
its  value,  it  may  be  taken  into  account  and  considered  by  the 
jury,  with  the  other  evidence  in  the  case,  in  determining  what 
was  the  actual  value  of  the  property. 


414  INSTRUCTIONS 

USURY. 

SUIT    BY    PAYKE    OK    NOTE. 

Interest  Forfeitetl. — The  court  instructs  the  jury,  that  where  a 
party  coiitractf^  for,  or  receives,  a  greater  rate  of  interest  than  is 
allowed  hy  law,  and  usury  is  pleaded,  he  cannot  recover  any 
interest  whatever  on  the  principal  sum  loaned,  and  all  payments 
made  upon  the  interest  so  agreed  to  he  i)aid,  if  any  are  proved, 
must  be  allowed  as  pgiyments  upon  the  i)rlncipal. 

rresumption  from  the  Payment  of  Usury. — The  court  further  in- 
structs the  jury,  that  if  they  believe,  fi'om  the  evidence,  under 
the  instructions  of  the  court,  that  any  usurious  interest  has  been 
paid  by  the  defendant,  and  accepted  by  the  plaintiff,  upon  tlie 
transaction  in  question,  then  that  fact  is  prima  facie  evidence 
of  a  usurious  contract  to  pay  such  usury.  Whether  there  was  a 
usurious  contract  or  not  in  this  case  is  a  question  of  fact  to  be 
determined  by  the  jury,  from  a  consideration  of  all  the  evidence 
in  the  case.     Reinhack  vs.  Crahtree,  77  111.,  182. 

Interest  Paid  to  be  Credited  on  Principal. — The  court  further  in- 
structs the  jury,  that  if  they  believe,  from  the  evidence,  that  the 

defendant  borrowed  of  the  j)laintiff  the  sum  of  S ,  f*>i"  which 

he  gave  the  note  sued  on  in  this  case,  and  that  at  the  time  the 
money  was  so  borrowed  it  was  agreed  by  the  parties  that  the 
defendant  should  pay  for  such  loan,  besides  the  interest  men- 
tioned in  the  note,  additional  interest  equal  to  per  cent. 

per  annum  {or  the  sura  of% ),  then  such  additional  intei'cst 

{or  additional  sum)  made  the  transaction  usurious;  and,  uiidci- 
the  statute  of  this  state,  forfeits  the  whole  of  the  interest. 

And  if  the  jury  further  believe,  from  the  evidence,  that  the 
defendant  has  paid  any  interest  on  said  note,  then  such  payment 
must  be  credited  as  payment  on  the  prii\cipal  sum  loaned,  and 
the  jury  should  find  accordingly. 

If  the  jury  believe,  from  the  evidence,  that  at  or  about  the 
time  the  note  sued  on  in  this  case  was  given,  the  defendant  bor- 
rowed of  the  plaintiff  the  sum  of  (ii^l,900)  for  the  period  of  {tioo) 


IN    CIVIL    ACTIONS.  415 

years,  and  that  In  consideration  thereof,  and  to  secure  the  pay- 
ment of  the  sum  so  borrowed,  the  defendant  executed  and 
delivered  the  note  for  ($2,000),  bearing  interest  at  the  rate  of 
{eight)  per  cent,  per  annum  from  date;  and  if  tlie  jury  further 
believe,  from  the  evidence,  that  the  (8100)  included  in  the  note, 
in  excess  of  the  ($1,900)  borrowed,  was  allowed  and  agreed  to 
be  paid  as  interest  on  the  sum  borrowed,  then  the  transaction 
was  a  usurious  loaning  of  money,  and,  under  the  laws  of  this 
state,  the  plaintiff  has  forfeited  the  whole  of  the  interest  accru- 
ing upon  the  note,  and  3'our  verdict  should  be  for  the  amount 
originally  loaned,  less  all  the  payments  made  thereon,  whether  of 
principal  or  interest,  if  any  such  payments  are  shown  by  the 
evidence. 

Excess  Paid  as  Commissions,  Etc. — If  the  jury  believe,  from  the 
evidence,  that  the  said  A.  B.  was  employed  by  the  defendant  to 
obtain  for  him  a  loan  of  money,  with  the  understanding  or 
agreement  that  he  would  pay  or  compensate  the  said  A.  B.  for 
his  services  in  obtaining  said  loan,  and  also  that  at  or  about  the 
date  of  the  note  in  question,  the  said  A.  B.  negotiated  a  loan 
from  the  plaintiff  to  the  defendant — that  such  loan  was  subse- 
quently made,  and  the  note  in  question  in  this  suit  given  to 
secure  the  payment  of  such  loan,  then,  if  the  jury  further  be- 
lieve, from  the  evidence,  that  upon  such  loan  being  made,  the 
defendant  agreed  to  pay  the  said  A.  B.  the  sum  of  ($100)  for 
his  services  in  effecting  such  loan,  and  that  the  said  sum  of 
($100)  was  not  paid  by  the  defendant,  but,  by  agreement  of  all 
the  parties,  was  included  in  said  note,  as  a  part  of  the  principal 
thereof,  this  would  not  render  the  transaction  usurious,  and  the 
jury  should  find  for  the  plaintiff  the  full  amount  called  for  by  said 
note,  both  principal  and  interest,  after  crediting  thereon  all 
payments,  if  any  are  shown  by  the  evidence  to  have  been  made 
upon  the  said  note. 

Attempts  to  Evade  tlie  Statute. — The  jury  are  instructed,  as  a  mat- 
ter of  law,  that  every  shift,  devise,  or  trick  which  may  be  resorted 
to  for  the  purpose  of  evading  the  statute,  against  usurious  con- 
tracts, will  bring  the  transaction  within  the  statute,  as  clearly  as 
if  its  provisions  had  been  directly  and  in  terms  violated;  and  if 


416  INSTRUCTIONS 

the  transaction  is  in  trutli  and  in  fact  a  loanino;  of  money  for  a 
payment,  made  or  agreed  to  be  made,  greater  than  the  interest 
on  the  loan  at  the  rate  of  {eight)  per  cent,  per  annnm,  the  trans- 
action is  nsnrions. 

And  in  this  case,  if  the  jnry  believe,  from  the  evidence,  that 

the  defendant  borrowed  from  the  plaintiff  the  snm  of  

dollars,  and  paid,  or  agreed  to  pay  therefor,  any  sum  greater,  or 
in  excess  of  the  interest,  at  the  rate  of  {eight)  per  cent,  per  an- 
num, on  the  money  borrowed,  this  would  render  the  transaction 
nsnrions,  and,  under  the  laws  of  this  state,  would  forfeit  all  in- 
terest npon  said  loan — and  this  would  be  so,  even  though  the 
parties  called  the  excess  so  paid,  or  agreed  to  be  paid,  a  present, 
or  a  bonus  from  the  defendant  to  the  plaintiff,  or  commissions 
paid  to  the  plaintiff  as  an  inducement  to  him  to  make  the  loan. 

Contract  Must  be  Proved  as  Pleaded. — The  court  instructs  the  jury, 
that  the  defense  of  usury,  under  our  practice,  must  be  sjjecially 
jileaded,  and  strictly  proved  as  pleaded.  Under  the  pleadings 
in  this  case,  the  defendant,  in  order  to  sustain  his  defense  of 
iisurv,  must  show,  by  a  preponderance  of  the  evidence,  that  the 
contract  of  loaning  was,  etc.,  and  that  he  paid  {or  agreed  to  pay) 

the  sum  of  8 >  over  and  above  the  interest  called  for  by  the 

notes,for  the  purpose  of  giving  plaintiff  more  than  {eight)  per  cent, 
interest  on  the  money  loaned.  And  if  the  jury  believe,  from  the 
evidence,  that  the  agreement  was  other  than  tliat  above  stated, 
or  that  any  other  sum  than  that  above  stated  was  paid  {or  agreed 
to  he  paid)  as  usury,  then  the  defense  of  usury  is  not  made  out, 
and  the  jury  should  find  for  the  plaintiff  for  the  amount  due 
upon  the  note,  including  interest.  Frank  vs.  Morris,^!  111.,  138. 

SUIT  BY  ASSIGNEi:,  ETC. 

Note  Given  for  Usury. — The  jury  are  instructed,  that  if  they  be- 
lieve, from  the  evidence,  that  the  only  consideration  for  the  note 
sued  on  was  illegal  or  usurious  interest,  agi'ced  to  be  paid  by  the 
defendant,  as  alleged  in  hi>  [)lea,  then  the  jury  should  lind  tlic 
issues  for  the  defendant;  provided,  they  further  believe,  from 
the  evidence,  that  the  note  was  assigned  by  the  payee  after  it 
])ecamG  due,  or  that  the  plaintiff  had  notice  of  such  usurious 
transaction  at  tlie  time  the  note  was  so  assigned  to  him. 


IN    CIVIL    ACTIONS.  417 

That  a  note  given  for  usurious  interest  is  given  for  an  illegal 
consideration,  and  is  not  binding  upon  the  maker,  unless  it  is  in 
the  hands  of  an  innocent  purchaser,  who  takes  it  in  the  regular 
course  of  business  before  due,  for  value,  and  without  notice  of 
such  consideration;  and  if  the  jury  believe,  from  the  evidence, 
that  the  note  in  question,  in  this  case,  was  given  for  usury,  and 
that  the  same  was  assigned  by  the  payee  thereof  after  it  l)ecame 
due,  or  that  the  plaintiff  had  notice  of  such  illegal  consideration 
at  the  time  he  purchased  the  note,  then  the  jury  should  find  for 

the  defendant. 

[See  Negotiable  Instrume'iits.'\ 

Note  Growing  out  of  Antecedent  Usurious  Transactions. — Tlie  j  ury  are 
instructed,  that  the  defendant  in  one  of  his  pleas,  to  which  your 
attention  has  been  called,  has  set  up  the  defense  of  usury;  and 
regarding  that  defense,  the  court  instructs  you,  as  a  matter  of 
law,  that  if  promissory  notes  are  once  tainted  with  usury,  the 
I'cnewal  of  them,  if  the  usury  is  added  into  the  new  notes,  will 
not  free  the  transaction  from  usury.  The  rule  in  such  cases  is, 
that  the  defense  of  usury  may  be  interposed  so  long  as  any  por- 
tion of  the  original  debt  remains  unpaid  in  the  hands  of  the 
original  payee,  or  of  any  assignee  thereof,  if  the  note  is  assigned 
after  maturity,  or  with  notice  of  such  defense;  and  in  this  case, 
if  the  jury  believe,  from  the  evidence,  that  the  defendant  has 
proved  all  the  allegations  of  his  plea  of  usury,  as  therein  stated, 
l)y  a  23reponderance  of  the  evidence,  then  upon  the  question  of 
usury  the  jury  should  find  in  favor  of  the  defendant.  2  Parsons 
on  Notes  and  Bills,  420;  Grayx?,.  Brown^  22  Ala.,  262;  Bridge 
vs.  Ilubhard,  15  Mass.,  96;  Walker  vs.  Bank,  etc.,  3  Plow.,  62; 
Powell  vs.  Waters,  S  Cowan,  685;  House  vs.  Davis,  60  111.,  362. 
[See  Part  I.,  Sec.  17.] 

If  the  jury  believe,  fi-om  the  evidence,  that  the  note  in  ques- 
tion was  given  in  consideration  of  a  usurious  loaning  of  money, 
as  stated  and  set  forth  in  the  defendant's  plea,  and  also  that  the 
note  was  assigned  or  indorsed  by  the  payee  thereof  to  the  plain- 
tiff after  it  l)ecame  due,  or  that  the  plaintiff  had  notice  when  the 
note  was  assigned  to  him,  that  it  was  given  uj)on  such  usurious 
loaning  of  money,  then  he  can  only  recover  in  this  case  the 
amount  of  the  money  actually  loaned,  less  all  payments  made  by 

27 


418  INSTKUCTIONS 

the  (lofondant  tlicroon,  whether  of  principal  or  interest,  if  any 
such  j>a\iaents  are  proved,  and  the  jury  rihoiihl  find  their  verdict 
accordingly. 

Bona  Fide  Holder. — Although  the  jury  may  believe,  from  the 
evidence,  that  the  note  in  (piestion  was  given  upon  the  usurious 
loaning  of  money,  as  stated  and  set  forth  in  the  defendant's  plea 
filed  in  this  case;  still,  if  the  jury  further  believe,  from  the  evi- 
dence, that  the  note  was  assigned  to  the  plaintiff  before  it  be- 
came due,  for  a  valual>le  consideration,  and  that  the  plaintiff  had 
no  notice  of  such  usurious  transacttiou  at  the  time  of  the  assign- 
ment to  him,  tht'U  lu'  is  entitled  to  recover  in  this  suit  the  face 
of  said  note,  principal  and  interest,  less  the  payments  indorsed 
thereon,  and  the  jury  should  find  their  verdict  accordingly. 


WARRANTY. 

What  Constitutes  Warranty. — The  court  instructs  the  jury,  that  to 
constitute  a  warranty  it  is  not  necessary  that  the  word  "warranty" 
or  any  particular  word  should  be  used  in  the  contract ;  but,  if 
the  jury  believe,  fn^m  the  evidence,  that  expressions  were  used 
by  the  defendant,  from  which  the  plaintiff  had  reasonable  ground 
to  suppose  that  a  warranty  was  intended  by  the  defendant,  and 
that  he  did  so  suppose,  and  in  making  the  purchase  relied  upon 
such  supposed  warranty,  then  the  jury  should  find  that  there  was 
a  warranty  in  fact.  Benj.  on  Sales,  §  G13;  Vdfi  J^us/t'i/'k  \s. 
Murden,  22  111.,  446;  Thome  vs.  Mc  Veagh,  75  111.,  81 ;  1  Pars, 
on  Cont.,  402-40.3. 

That  no  particular  words  or  form  of  expression  is  necessary  to 
create  a  warranty,  nor  need  the  word  warranty  be  used.  If 
the  representation  is  positive  and  relates  to  a  matter  of  fact,  and 
not  to  a  matter  of  opinion,  and  the  other  party  receives  the  state- 
ment as  true,  and  relies  upon  it  in  making  the  trade,  such  repre- 
sent:iti<jn  will  constitute  a  warranty,      liobiitson  vs.  Harvey^  82 

111.,  r>s. 

That  to  constitute  an  express  warranty,  the  word  warrant  need 
not  be  used,  nor  is  any  i)recise  form  of  expression  necessary  to 


IN    CIVIL    ACTIONS.  419 

create  a  warranty;  any  affirmation  of  the  quality  of  an  article 
or  thing  sold  made  by  the  seller,  at  the  time  of  the  sale,  for  the 
purpose  of  assuring  the  buyer  of  the  truth  of  the  fact  affirmed, 
and  to  induce  him  to  make  the  purchase,  if  so  received  and 
relied  upon  by  the  purchaser,  will  amount  to  an  express  war- 
ranty. 

And,  in  this  case,  if  the  jury  believe,  from  the  evidence,  that 
the  note  sued  on  was  given  by  the  defendant  towards  the  pur- 
chase price  of,  etc.,  sold  to  him  by  the  plaintiff,  and  that  upon 
such  sale  the  plaintiff  represented  to  the  defendant  that  the  said 
{jiiachine,  when  properly  itsed,  loas  capable^  etc.,)  and  that  the 
said  defendant,  relying  upon  such  representations,  purchased  the 
said  {machine)  upon  the  faith  of  the  truth  thereof,  this,  in  law, 
would  amount  to  a  warranty  that  the  said  {machine)  was,  etc. 

That  no  particular  form  of  words  is  necessary  to  constitute  a 
M'aiTanty.  If  the  jury  believe,  from  the  evidence,  that  the  plain- 
tiff represented  and  stated  to  the  defendant  that  the  property  in 
question  was  {firnt-class  and  equal  to  any  of  that  hrand  in  the 
market),  and  that  such  representations  and  statements  were  made 
by  the  plaintiff  with  the  intention  that  the  defendant  should 
])elieve  them  to  be  true,  and  rely  upon  them,  and  be  induced 
tlu3reby  to  purchase  the  pro]3erty;  and,  also,  that  the  defendant 
did  rely  upon  such  representations  and  statements  as  a  warranty 
of  the  quality  of  the  said  articles,  and  was  thereby  induced  to 
purchase  the  same,  then  such  representations  and  statements 
would  amount  to  a  warranty  that  the  said  goods  were,  etc. 

Inteution  not  Material. — The  jury  are  instructed,  that  to  con- 
stitute a  warranty  it  is  not  necessary  to  show  that  the  seller 
intended  to  cheat  or  deceive  the  purchaser  in  the  sale  of  the 
I)roperty.  It  is  wholly  immaterial  whether  or  not  the  seller 
believed  his  representations  to  be  true  at  the  time;  the  pur- 
chaser's right  to  recover  for  a  breach  of  warranty,  in  such  cases, 
does  not  depend  upon  the  seller's  intention  to  deceive,  but  upon 
the  intention  to  warrant,  or  upon  the  fact  of  a  warranty. 

In  order  to  constitute  a  warranty  upon  a  sale,  it  is  not  neces- 
sary that  the  representation  should  have  been  intended  by  the 
vendor  as  a  warranty.  If  the  representation  is  clear  and  posi- 
tive as  to  the  kind  or  quality  of  the  article,  and  not  a  mere 


420  INSTRUCTIONS 

expression  of  opinion,  and  the  purchaser  understands  it  as  a 
Avan-anty,  and,  relying  upon  it,  purchases  the  property,  tlien  the 
vciidoi- cannot  escape  liability  by  chximing  that  he  did  not  intend 
Avhat  his  lano-uage  declared  or  fairly  implied.  Hawkins  vs. 
Pemherton,  51  >;.  Y.,  198. 

IVliat  Does  not  Amount  to  a  Warranty. — The  jury  are  instructed, 
that  while  it  is  ti-ue,  if  the  seller  of  personal  property  asserts,  as  a 
fact,  anvthing  regarding  its  qualities,  and  concerning  which  the 
buyer  is  ignorant,  and  the  purchaser  relics  upon  the  statement  in 
making  the  purchase,  the  assertion  will  amount  to  a  warranty  of 
the  fact  asserted;  still,  it  is  also  true,  that  if  the  vendor  merely 
states  an  opinion,  or  gives  his  judgment  upon  a  matter  of  which  he 
lias  no  special  knowledge,  and  upon  which  the  buyer  also  might 
reasonably  be  expected  to  have  an  opinion  and  to  exercise  judg- 
ment, this  is  not  a  warranty.  Benj.  on  Sales,  §  567;  Jlillman 
\i^.  Wilcox,  30  Me.,  170;  Chapman,  vs.  March,  19  John.,  290; 
Polhemiis  vs.  Ileimaii,  45  Cal.,  573. 

The  jury  are  instructed,  that  the  mere  expression  of  an  opinion 
or  representations  concerning  the  qualities  or  capabilities  of  an 
article  sold  by  the  vendor,  do  not,  of  themselves,  constitute  a 
warranty;  to  amonnt  to  a  warranty  the  language  used  must  form 
a  part  of  the  contract  of  sale,  and  be  such  as  to  import  or 
amount  to  a  promise  that  the  article  in  (picstion  does  possess  the 
qualities  and  capabilities  mentioned  in  the  alleged  promise  or 
contract,  and  the  expressions  or  representations  must  be  relied 
upon  by  the  buyer,  as  a  warranty,  in  making  the  purchase. 

The  jury  are  further  instructed,  that  to  constitute  a  warranty 
there  must  not  only  be  an  affirmation  by  the  seller  respecting 
the  quality  of  the  article  sold,  Init  the  affirmation  must  be  made 
with  a  view  of  assuring  the  buyer  of  the  truth  of  the  fact 
asserted,  and  it  nnist  be  received  and  relied  upon  by  the  buyer 
in  making  the  purchase. 

That,  while  to  constitute  a  warranty,  the  term  warrant  need 
not  be  used,  nor  any  precise  form  of  expression  employed,  still, 
to  constitute  a  binding  warranty,  there  must  be  an  affirmation  as 
to  the  cpiality  or  condition  of  the  thing  sold  made  by  the  seller, 
at  or  befoi-e  the  sale,  for  the  purpose  of  assuring  the  buyer  of 
the  truth  of  the  fact  asserted,  and  of  inducing  him  to  make  the 


IN    CIVIL    ACTIONS.  421 

purcliase,  and  it  must  be  so  received  and  relied  upon  by  the 
purchaser.  Benj.  on  Sales,  §  613;  Hawkins  vs.  Berry^  5  Gilm,, 
36;  Bishop  vs.  Small,  63  Me.,  12;  Byrne  vs.  Jansen,  50  Cal., 
624 ;  Humphreys  vs.  Combine,  8  Blackf.,  508 ;  Hahn  vs.  Doo- 
little,  18  Wis.,  197;  Hawkins  vs.  Pemherton,  51  N.  Y.,  198. 

Mere  Praise  or  Boasting  not  a  Warranty. — The  jury  are  instructed, 
that  mere  praise  or  boasting  indulged  in  by  the  owner  of  per- 
sonal property,  when  offering  it  for  sale,  does  not  amount  to  a 
warranty  of  its  quality  or  condition,  if  such  praise  or  boastful 
remarks  are  but  expressions  of  opinion  or  judgment  concerning 
the  property;  provided,  the  purcluiser  has  an  opportunity  to 
examine  the  property  at  the  time,  and  does  or  does  not  do  so, 
and  where  no  artifice  is  used  to  prevent  him  making  an  exami- 
nation.    Byrne  vs.  Jansen,  50  Cal.,  624. 

That  when  parties  are  negotiating  a  trade  for  property  which 
there  is  an  opportunity  for  examining,  the  owner  of  the  pi-op- 
erty  has  a  right  to  extol  the  value  or  desirable  qualities  of  his 
property  to  the  highest  point  which  the  credulity  of  the  pur- 
chaser will  bear,  if  he  confines  himself  to  mere  expression  of 
opinion  or  judgment.  Such  boastful  assertions  or  highly  exag- 
gerated descriptions  do  not  amount  to  a  warranty ;  in  such  cases 
the  parties  are  upon  equal  ground,  and  the  purchaser  must 
exercise  his  own  judgment  and  abide  the  consequences. 

Warranty  Must  Form  Part  of  the  Contract. — The  court  instructs 
the  jury,  that  to  constitute  a  valid  and  l)inding  warranty,  the 
agreement  to  warrant  must  enter  into  and  form  a  pai-t  of  the 
contract  of  sale.  If  the  agreement  to  warrant  the  article  is  not 
made  at  the  time  the  trade  is  consummated  or  closed  up,  then  it 
must  be  made  during  the  negotiation  between  the  parties,  and 
so  shoi'tly  before  the  sale  and  under  such  circumstan-ces  that  the 
purchaser  was  reasonably  justified  in  regarding  it  as  continuing 
nntil  the  bargain  was  finished,  and  as  forming  one  of  the  terms 
of  the  contract  of  sale.  Benj.  on  Sales,  §  611;  Vincent  vs. 
Leland,  100  Mass.,  432;  Wilmot  vs.  Hurd,  11  Wend.,  584; 
Cougar  vs.  Chamberlain,  14  Wis.,  258;  Summers  v&.  Vaughn, 
35  Ind.,  323 ;  Bryant  vs.  Crosly,  40  Me.,  9. 


422  INSTRUCTIONS 

Warranty  After  the  Sale. — That  a  warranty  made  after  the  con- 
tract of  sale  is  conchided,  if  proved,  is  not  binding,  nnless  it  is 
made  as  a  new  and  separate  contract,  and  npon  some  new  con- 
sideration passing  between  the  jiarties;  and  tliough  the  jury  may 
believe  that  npon  the  occasion  in  question,  the  i)laintiff  said  to 
the  defendant  {the  horse  is  sound  and  true,  and  all  I'iyht,)  still 
if  the  jnry  further  believe,  from  the  evidence,  that  this  was  not 
said  until  after  the  trade  was  completed,  this  alone  would  not 
constitute  a  binding  warranty. 

That  in  order  to  make  out  the  defense  of  warranty,  and  a 
breach  thereof,  it  must  appear,  from  the  evidence,  that  the 
representations  relied  upon,  if  any  were  made,  were  made  before 
the  defendant  accepted  the  property  in  question,  under  the  con- 
ti-act  of  sale;  and  unless  the  jury  believe,  from  the  evidence, 
that  the  alleged  warranty  was  made  before  the  contract  of  sale 
was  completed  and  the  property  delivered  to  the  defendant,  and 
accepted  by  him,  as  in  compliance  with  the  contract,  then  the 
jury  should  find  for  the  plaintiff  upon  the  question  of  Avarranty; 
provided,  you  find,  from  the  evidence,  that  the  property  was 
so  delivered  and  ac(;epted  by  the  defendant. 

That  in  order  to  constitute  a  warranty  there  must  not  only  be 
an  affirmation  by  the  seller,  respecting  the  quality  or  condition 
of  the  article  sold,  but  it  must  be  made  with  the  view  of  assur- 
ing the  buyer  of  the  truth  of  the  fact  asserted,  and  must  be 
relied  upon  by  him,  and  be  one  of  the  inducements  to  him  to 
purchase  the  goods. 

Sale  by  Sample— Iiiipliod  Warranty. — The  jury  are  instructed,  that 
when  goods  are  offered  for  sale  under  such  circumstances  that 
there  is  no  reasonable  opportunity  to  inspect  them  by  the  i)ur- 
chaser,  and  the  vendor  exhibits  what  he  represents  to  be  a  sample 
of  the  goods  so  offered,  and  a  sale  is  thereby  effected,  then  the 
vendor  impliedly  warrants  the  quality  of  the  bulk  of  the  goods  so 
sold  to  be  equal  to  that  of  the  sample.  Benj.  on  Sales,  §  648; 
Beirne  vs.  Dord,  1  Selden,  95;  S.  C,  2  Sandf.  Sup.  Ct.,  89; 
Bradford  vs.  3Ianhy,  13  Mass.,  139. 

If  the  jury  believe,  from  the  evidence,  that  there  was  a  con- 
tract between  the  })arties,  by  which  it  was  agreed  that  the  plain- 
tiff should  sell    and   deliver cases  of,  etc.,  and   that  the 


IN    CIVIL    ACTIONS.  423 

plaintiff  had  with  him  what  he  represented  as  a  sample  of  the 
goods  to  be  deliv-ered,  then  there  was  an  implied  warranty  that 
the  bulk  of  the  articles  so  contracted  to  be  delivered  should  be 
equal  in  value  to  the  sample  so  shown;  and  if  the  goods  for 
warded  to  the  defendant  were  not  equal  in  quality  to  the  sample, 
he  was  under  no  obligation  to  keep  them. 

Purchaser  Has  Reasonable  Opportunity  to  Inspect,  Etc. — That  it  is 
an  implied  condition  in  all  sales  by  sample,  that  the  buyer  shall 
have  a  fair  opportunity  of  examining  the  bulk  of  the  articles  sold, 
and  of  comparing  them  with  the  sample  before  determining 
whether  he  will  accept  them  or  not.  Benj,  on  Sales,  §  594:,  (J-iS ; 
Loryrner  vs.  Smith,  1  B.  &  C,  1. 

Sale  when  Not  hy  Sample. — Although  the  jury  may  believe, 
from  the  evidence,  that  at  the  time  of  the  alleged  sale,  tlie 
plaintiff  had  with  him,  and  showed  to  the  defendant  what  he 
represented  to  be  a  fair  sample  of  the  goods  in  question,  still,  if 
the  jury  further  believe,  from  the  evidence,  that  the  defendant 
had  an  opportunity  to  inspect  the  goods  in  question,  and  did 
inspect  them  as  far  as  he  desired  to  do  so,  and  refused  to  pur- 
chase by  the  sample  shown  him,  then  there  was  no  implied  con- 
tract on  the  part  of  the  plaintiff  that  the  goods  sold  should  equal 
the  sample  in  quality  or  value. 

Warranted  Equal  to  Sample. — If  the  jury  believe,  from  the  evi- 
dence, that  the  note  in  suit  in  this  case  was  given  by  the  defend- 
ant for  a  part  of  the  purchase  price  of  {a  machine),  sold  by  the 
plaintiff  to  the  defendant,  then,  if  the  jury  further  believe,  from 
the  evidence,  that  the  j)laintiff,  as  a  part  of  the  contract  of  sale, 
warranted  [the  machine)  so  sold  to  be  similar  in  make  and 
equally  as  good  as  a  sample  {machine)  then  shown  to  the  de- 
fendant, if  you  find,  from  the  evidence,  that  such  sample  was 
shown,  and  if  you  also  find,  from  the  evidence,  that  the  {ma- 
chine^ sold  was  not  similar  in  construction  or  equally  as  good  as 
the  sample,  and  that  the  defendant  is  damaged  by  reason  thereof, 
then  the  jury  should  deduct  the  amount  of  such  damage  from 
the  amount  due  on  the  note,  and  render  a  verdict  in  favor  of  the 
plaintiff  for  the  balance ;  provided,  you  find,  from  the  evidence, 


424  INSTRUCTIONS 

that  >ufli  damage  is  less  than  the  amount  due  on  tlie  note;  and 
if  yon  lind  the  amount  due  on  the  note  to  he  less  than  the 
amount  of  such  damage,  then  you  sliould  deduct  the  amount 
due  on  the  note  from  the  amount  of  such  damage,  and  return  a 
\erdit-t  in  favor  of  the  defendant  for  the  balance  so  found. 
[See  Part  I.,  Sec.  19.] 

SALES    FOU    KUTritK    DELIVERT. 

Implied  Warranty  of  Kind  and  Quality. — The  jury  are  instructed, 
that  in  a  sale  of  goods  for  future  delivery  by  name  or  descrip- 
tion (as,  for  instance,  wheat  or  No.  2  corn),  if  the  property  is  not 
inspected  by  the  buyer,  then  there  is  an  implied  warranty  that  the 
goods  shall  answer  the  description  given,  and  be  salal)le  and 
merchantable;  and  if  property  is  tendered  under  such  a  con- 
tract, which  does  not  answer  such  implied  warranty,  the  pur- 
chaser is  not  bound  to  accept  it.  Benj.  on  Sales,  §  656;  3fef- 
riam  vs.  Field.,  24  Wis.,  640;  McClung  vs.  Kelley,  21  la.,  508. 
The  law  is,  that  under  a  contract  to  deliver  a  certain  number 
of  bushels  of  wheat,  there  is  an  implied  wai'ranty  that  the  wheat 
is  to  1)0  of  a  fair  merchantable  (piality;  provided,  the  buyer  has 
had  no  ojiportunity  to  inspect  it;  and  if  tiie  jury  believe,  from 
the  evidence,  that  the  wheat  which  plaintiff  offered  to  deliver  to 
defendant  was  not  of  a  fair  merchantable  quality,  then  the 
defendant  was  under  no  obligation  to  acce})t  the  wheat;  even 
though  it  was  tendered. 

Implied  Warranty. — The  court  instructs  the  jury,  that  in  the 
case  oi  a  sale  of  personal  property,  where  there  is  no  opportu- 
nity for  the  purchaser  to  insjject  it,  there  is  an  implied  warranty 
that  the  property  is  of  a  fair  merchantable  quality,  in  good  con- 
dition, and  lit  for  the  use  to  which  it  is  usually  ap])lied.  Mer- 
riain  vs.  Field,  39  Wis.,  578. 

Though  the  jury  may  believe,  from  the  evidence,  that  the 
parties  entered  into  a  contract  by  whidi  the  j)laintirf  agreed  to 
deliver,  and  the  defendant  agreed  to  take  brick,  as  alk»ged  in  the 
declaration  in  this  case;  still,  if  the  jury  further  believe,  from  the 
evidence,  that  as  a  part  of  the  same  contract,  ])laintirf  warianteil 
and  agreed  that  the  brick  so  to  be  delivered  should  bo  the  same  iu 


IN   CIVIL    ACTIO xs.  425 

qualify,  or  as  good  as  those  used  in  the  construction  of,  etc. ;  and 
if  the  jury  further  believe,  from  the  evidence,  that  the  brick 
claimed  to  have  been  tendered  by  the  plaintiff  were  not  as  good 
in  quality  as  those  used  in  the  construction  of,  then  the  (lefend- 
ant  was  not  bound  to  accej)t  nor  pay  for  the  bricks  so  tendered. 

Implied  Warranty  of  Manufacturer. — The  coui-t  instructs  the  jurv, 
that  every  manufacturer  of  machinery  impliedly  contracts  with 
the  person  for  whom  an  article  of  machinery  is  made,  in  the  ab- 
sence of  a  special  agreement  to  the  contrary,  that  the  article 
manufactured  shall  be  reasonably  fit  for  the  purpose  for  which 
it  is  made,  and  if  the  article  is  not  so  fit,  then  the  manufacturer 
is  liable  for  the  damage  occasioned  by  such  unfitness. 

The  court  instructs  the  jury,  that  where  a  manufacturer  sells 
a  commodity,  by  a  well-known  market  description,  and  the  com- 
modity is  not  present  at  the  time  and  place  of  trade,  and  is  not 
seen  or  examined  hy  the  purchaser,  the  law  will  inq)ly  a  wai-- 
ranty,  on  the  part  of  the  seller,  that  the  commodity  is  of  a  fair 
merchantable  quality,  corresponding  to  the  description  under 
which  it  is  sold.  And  the  same  rule  applies  where  the  seller 
holds  himself  out  as  the  manufacturer  of  the  commodity  sold,  or 
sells  under  circumstances  reasonably  warranting  the  purchaser 
in  believing  him  to  be  selling  as  a  manufacturer.  CM.  P'h'g  c6 
Prov.  Co.  vs.  Tilton,  87  111.,  547. 

If  the  jury  believe,  from  the  evidence,  that  the  defendant  pur- 
chased the  machine  in  question  of  the  plaintiff,  and  that  the 
plaintiff  was  the  manufacturer  of  said  machine,  or  represented 
himself  as  such  manufacturer,  and  that  the  defendant  did  not 
have  a  reasonable  opportunity  to  inspect  the  machine  before  pui-- 
chasing  it,  then  the  law  implies  a  warranty,  on  the  part  of  the 
plaintiff,  that  the  machine  M^as  one  reasonably  fit  and  suitable 
for  the  purpose  for  which  it  was  sold  to  the  defendant.  And  if 
the  jury  further  believe,  from  the  evidence,  that  the  machine  at 
the  time  it  was  sold,  was  not  reasonably  fit  and  suitable  for  such 
purpose,  and  that  the  defendant  by  reason  thereof,  has  sustained 
damage  to  an  amount  equal  to  or  greater  than  the  amount  of  the 
note  sued  on,  then  the  jury  should  find  for  the  defendant;  pro- 
vided, you  further  believe,  from  the  evidence,  that  the  note  in 


426  INSTRUCTIONS 

(piestion  was  cjiven  for  a  jtart  of  tlie  purchase  price  of  the 
machine.  I>eiij.  on  Sales,  §  057;  Pars,  on  Cont,  467;  Mann 
vs.  Evei'sfon,  ;!j}  Ind.,  355;  Bird  vs.  3fayer,  8  Wis.,  362. 

If  the  jury  believe,  from  the  evidence,  that  the  defendant, 
after  he  had  had  an  opportunity  to  inspect  the  said  machines, 
accepted  them  as  made  in  compliance  with  the  terms  of  the  con- 
tract between  the  parties,  then  he  cannot  now  refuse  to  pay  for  the 
same,  on  tlie  ground  of  a  defect  in  the  material  or  workmanship, 
unless  such  defect  was  concealed,  or  not  perceptible  on  inspection, 
or  unless  there  was  a  warranty  as  to  the  quality  of  material  or 
workmanship,  covering  the  alleged  defect. 

If  the  jury  believe,  from  the  evidence,  that  the  plaintiff  sold 
the  nuichine  in  (piestion  to  the  defendant,  and,  that  at  the  time 
of  such  sale,  the  plaint i if  made  a  verbal  warranty  that,  etc.,  and 

agreed  to  take  back  the  mac-hine,  at  any  time  within months 

from  the  date  of  such  sale,  and  return  the  money  paid  therefor,  in 
case  the  warranty  should  fail;  and  if  the  jury^  further  believe, 
fi-om  the  evidence,  that  said  machine  did  not  meet  the  recpiire- 
ments  of  su(;h  warranty,  and   tliat  the  defendant,  within  the  said 

months,  notified  the  plaintiff  of  such  failure,  and  to  come 

and  remedy  the  defect,  or  take  the  machine  away,  and  that  the 
plaintiff  did  neither,  then  the  property  still  belongs  to  the  plain- 
tiff, and  he  cannot  recover  in  this  suit  for  the  price  of  the 
machine. 

Machine  ou  Trial— Should  Gire  Notice  in  Reasonable  Time. — Where  a 
party  sells  {a  reaping  and  mowing  machine]^  with  an  agreement, 
at  the  time,  that  if  it  should  not  prove  to  be  a  good  machine,  he 
will  take  it  back,  or  make  it  all  right,  he  is  under  no  (obligation 
to  take  back  the  maciiine,  or  nuike  it  all  right,  unless  called  upon 
to  do  so  within  a  reasonable  time  after  the  sale. 

To  be  Returned  in  Reasonable  Time. — If  the  jury  believe,  from  the 
evidence,  that  the  agreement  between  the  parties,  was  tliat  de- 
fendant was  not  to  keep  the  machine  unless  it  suited  him,  and 
that  he  was  to  have  the  privilege  of  returning  it  if  it  displeased 
liiin;  tlu'U  if  lie  was  not  satisfied  witli  thi;  niacliine,  lie  was 
bound  to  return  it,  within  a  reas()nal)le  time,  and  if  he  did  not 
<lo  so,  he  will  be  held  to  have  elected  to  keep  the  machine,  and 
pay  for  it  at  the  agreed  price. 


IN   CIVIL    ACTIONS  427 

When  no  Implied  Warranty. — The  court  instructs  the  jury,  that 
where  a  person  buys  an  article  of  personal  j)roperty,  and,  bef(jre 
purchasing  it,  inspects  the  article,  or  has  a  reasonable  oppor- 
tunity to  inspect  it,  and  fails  to  do  so,  there  is  no  implied 
warranty,  on  the  part  of  the  seller,  as  to  the  quality  or  value  of 
the  article  purchased. 

That  where  a  person  purchases  an  article  of  personal  prop- 
erty, and  at  the  time  of  the  purchase  the  article  is  present,  and 
subject  to  reasonable  inspection  and  examination  of  the  buyer, 
as  to  its  quality  or  value,  then  the  purchaser  takes  the  property 
at  his  own  risk,  so  far  as  regards  its  workmanship  and  material, 
unless  the  seller  expressly  warrants  the  character  of  the  same,  or 
there  is  some  concealed  defect  or  fraud  practiced. 

If  the  jury  believe,  from  the  evidence,  that  the  defendant  pur- 
chased of  the  plaintiff  the  apples  in  question,  at  an  agreed  price, 
and  that,  at  the  time  of  such  purchase,  the  defendant  actually 
inspected  the  apples,  and  knew  their  condition,  then  the  defend- 
ant is  liable  to  the  plaintiff  for  the  full  price  so  agreed  upon, 
whatever  may  have  been  the  actual  condition  of  the  apples  at 
the  time  of  the  purchase. 

If  the  jury  believe,  from  the  evidence,  that  the  defendant  pur- 
chased of  the  plaintiff  the  apples  in  question,  at  an  agreed  price, 
and,  at  the  time  of  such  purchase,  actually  inspected  a  part 
of  the  apples,  and  might  have  inspected  the  remainder  if  he  had 
wished  to  do  sOj  and  that  the  bulk  of  the  apples  were  of  like 
quality  with  those  which  he  did  inspect,  then  the  defendant  is 
liable  to  the  plaintiff  for  the  full  price  so  agreed  upon,  whatever 
may  have  been  the  actual  condition  of  the  apples  at  the  time  of 
the  purchase. 

Defense— Fraud  and  Breach  of  Warranty. — The  court  instructs  the 
jury,  that  where  a  party  purchases  an  article  of  personal  prop- 
erty, and  at  the  time  of  the  purchase  the  article  is  present  and 
subject  to  his  reasonable  examination,  as  to  its  construction, 
quality  and  value,  then  the  purchaser  takes  the  property  at  his 
own  risk,  so  far  as  regards  construction,  workmanship,  material 
and  value,  unless  the  seller  expressly  warrants  the  character  of 
the  article  in  respect  to  these  particulars,  or  unless  he  practices 
some  trick,  fraud  or  deceit  upon  the  purchaser. 


428  INSTRUCTIONS 

The  jury  are  further  instructed,  that  when  there  is  an  oppor- 
tunity afforded  for  the  purchaser  to  inspect  an  article  before 
purchasing  it,  and  there  is  neither  fraud  nor  express  warranry 
as  to  tlie  quality  or  condition,  then  the  law  implies  no  warranty 
in  reference  thereto,  and  tlu'  purchaser  takes  the  property  at  his 
own  risk. 

Warranty  of  the  Soundness  of  a  Horse. — If  the  jury  believe,  from 
the  evidence,  that  the  plaintiff  sold  the  horse  in  question  to  the 
defendant,  and  that  just  before  or  at  the  time  of  such  sale,  the 
plaintiff  made  any  declaration  or  affirmation  to  the  defendant 
reirardinff  the  condition  of  the  hoi-se,  to  the  effect  ("The  horse  is 
perfectly  sound,  well  broke  and  true  to  work"),  for  the  purpose  of 
assuring  the  defendant  of  the  truth  of  that  statement,  and  for 
the  purpose  of  inducing  him  to  buy  the  horse;  and  if  the  jury 
further  believe,  from  the  evidence,  that  the  defendant  did  be- 
lieve such  statement  to  be  true,  and,  relying  upon  the  truth 
thereof,  bought  the  horse  in  question,  this,  in  law,  would  con- 
stitute a  warranty  ("that  the  horse  was  perfectly  sound,  ^ell 
broke  and  true  to  work");  and  if  the  jury  further  believe,  from 
the  evidence,  that  such  statement  was  not  true  at  the  time,  but 
on  the  contrary,  that  said  horse  was  unsound  or  not  well  broken, 
etc.,  and  that  by  reason  thereof  the  defendant  has  been  damaged, 
this  would  constitute  a  breach  of  the  warranty  upon  which  the 
plaintiff  would  be  liable  for  the  amount  of  such  damages. 

If  the  jury  believe,  from  the  evidence,  that  during  the  negotia- 
tion between  the  parties  wdiich  led  to  the  trade  in  question,  the 
plaintiff  said  to  the  defendant,  ("The  horse  is  sound  and  true, 
and  I  Would  not  be  afraid  to  warrant  him,  but  you  know  my 
warranty  would  not  amount  to  anything"),  and  did  not  after- 
wards take  back  or  qualify  this  language,  this  would  amount  to 
a  binding  warranty  that  the  horse  was  sound  and  true  at  the 
time;  provided,  the  defendant  relied  upon  the  truth  of  such 
statement,  and  purchased  on  the  strength  of  it.  Cooh  vs.  Mos- 
leij,  13  Wend.,  277. 

Defect  Must  Exist  at  Time  of  Warranty. — That  a  warranty  made 
at  the  time  of  a  sale  of  a  horse,  that  he  is  sound  and  free  from 
vice,  is  not  a  warranty  that  the  horse  will  remain  sound  <^r  free 


IN    CIVIL    ACTIONS.  429 

from  vice.  And,  if  j^ou  believe,  from  the  evidence,  that  the 
horse  in  question  was  somid  and  free  from  vice  at  the  time  of 
the  sale,  then,  although  the  jury  may  further  believe,  from  the 
evidence,  that  the  horse  afterwards  became  diseased,  unsound, 
or  vicious,  still,  such  after- acquired  disease  or  vice  would  be  no 
defense  to  an  action  brought  to  recover  on  a  promissory  note 
given  for  the  purchase  price  of  tlie  horse. 

That  if  the  jury  believe,  from  the  evidence,  that  the  note 
sued  on  in  this  case  was  given  for  the  purchase  money  of  a 
horse  sold  by  the  plaintiff  to  the  defendant,  and  that  before  and 
at  the  time  of  the  sale,  the  plaintiff  represented  and  warranted 
the  horse  to  be  sound  and  free  from  vice,  and  that  the  defend- 
ant relied  upon  such  statements  and  warranty,  and  was  induced 
thereby  to  purchase  the  horse;  still,  unless  you  further  believe, 
from  the  evidence,  that  at  the  time  of  such  sale  and  purchase 
the  horse  was  unsound  {or  vicioin^)  in  fact,  such  representations 
and  warranty  constitute  no  defense  to  this  action.  An  unsound- 
ness afterwards  contracted,  or  a  vice  afterwards  acquired  l)y  the 
horse,  would  be  no  legal  defense  to  an  action  brought  to  recover 
on  the  note  so  given. 

Visible  Defects  not  Warranted  Against. — Tlie  court  instructs  the 
jury,  that  although  they  may  believe,  from  the  evidence,  that  the 
plaintiff,  at  the  time  of  the  sale,  did  say  he  would  warrant  tlie 
said  horse  to  be  perfectly  souiul,  still,  if  they  fnrtlier  believe, 
from  the  evidence,  that  the  defendant  had  all  reasonable  oppor- 
tunities, then  and  there,  to  inspect  and  examine  the  said  liorse, 
and  if  you  further  believe,  from  the  evidence,  that  there  were 
no  defects  or  blemishes  about  the  said  horse's  (eyes)  which  were 
not  perfectly  visible  to  an  ordinarily  skillful  and  cautious  ol)- 
server,  then  such  blemishes  or  defects  would  not  be  covered  by 
said  warranty. 

That  a  general  wari-anty  of  tlie  soundness  or  quality  of  an 
article  of  personal  property  sold,  does  not  include  or  cover 
defects  or  blemishes  which  are  known  to  the  purchaser,  or  which 
are  open  and  visible  to  a  person  of  ordinary  skill  and  intelli- 
gence, at  the  time  of  the  sale.  To  cover  such  defects  they  must 
be  expressly  named  or  mentioned  in  some  way,  and  v.'arranted 


430  1  N  S  T  RUCTIONS 

affainst,  unless  some  art  is  used  bv  the  vendor  to  conceal,  and  he 
does  conceal,  such  defects.  Benj.  on  Sales,  §  610;  Broion  vs. 
Bigelow,  10  Allen,  242;  Mulvaney  vs.  Rosenhurger,  IS  Penn. 
St.,  203;   Vandewalkcr  vs.  Osmer,  65  Barb.,  556. 

Artifice  to  Prevent  Exaiiiination  by  Purchaser. — The  jury  are  in- 
structed, that  the  general  rule  that  a  wai-ranty  does  not  protect 
against  defects  that  are  plain  and  obvious  to  the  senses  of  the 
purchaser,  and  whicli  it  required  no  special  skill  to  detect,  has 
no  application  if  the  vendor  uses  any  art  or  trick  to  conceal  the 
defect,  and  does  conceal  it,  or  if  he  uses  any  artifice  or  trick  to 
withdraw  the  attention  of  the  pui-chaser  away  from  the  defect, 
so  as  to  prevent  him  noticing  wliat  he  might  otherwise  liave 
noticed.  Chadsey  vs.  Green,  24  Conn.,  562;  Brown  vs.  liige- 
low,  10  Allen,  242. 

If  the  jury  believe,  from  the  evidence,  that  the  plaintiff  war- 
ranted the  horse  sold  to  be  sound,  at  the  time  of  the  sale,  and 
that,  at  that  time,  the  eyes  of  the  horse,  or  either  of  them,  was 
so  aifected  that  the  sight  was  impaired,  and  that  the  defect  was 
of  such  a  character  that  it  couhl  not  be  discovered  by  a  jkm-sou 
of  ordinary  care  and  skill  in  such  matters,  and  was  not  discov- 
ered by  the  defendant;  or,  if  tlie  jury  believe,  from  the  evidcuce, 
that  at  the  time  in  question,  the  ])laintiff,  by  words  or  conduct, 
intentionally  threw  the  defendant  off  his  guard,  so  that  he  did  not 
examine  the  horse's  eyes  as  closely  as  he  otlierwise  would,  and, 
for  that  reason,  did  not  discover  the  said  defects,  tlien  the  war- 
ranty of  tlie  phiintiff  would  cover  such  defects. 

Burden  of  Proof. — The  court  instructs  the  jury,  that  insofar 
as  the  defendant  relies  upon  a  warranty  of  the  cpiality  of  the 
property  sold  and  a  breach  of  the  same,  the  burden  of  proving 
the  warranty  is  upon  the  defendant;  and,  unless  he  has  proved 
both  the  warranty  and  the  breacdi  alleged,  by  a  preponderance  of 
evidence,  he  will  not  be  entitled  to  any  benefit  therefrom  in  this 
suit. 

To  entitle  the  plaintiff  to  recover,  in  this  suit,  it  is  not  only 
necessary. for  the  jury  to  find,  from  the  evidence,  that  the  plain- 
tiff warranted  the  animal  in  question  to  be  sound,  at  the  time  of 
the  sale,  but  it  must  fui-ther  apjiear,  from  the  evidence,  that  the 


IN    CIVIL    ACTIONS.  431 

animal  was  unsound  at  that  time;  and,  unless  both  these  facts 
appear,  from  the  evidence,  the  jury  should  lind  for  the  plaintiff, 
so  far  as  regards  the  alleged  warranty.  Bowman  vs.  Clemmer^ 
50  Ind.,  10. 

In  a  suit  to  recover  the  price  agreed  to  be  paid  for  goods 
sold  and  delivered,  if  the  defendant  relies  upon  a  warranty  and 
breach,  he  must  show  the  same  l)y  a  preponderance  of  testimony, 
in  order  to  make  the  defense  available.  Mailman  vs.  AYilliamson^ 
G9  111.,  423. 

In  this  case  it  is  incumbent  on  the  defendant  to  establish,  by 
a  preponderance  of  the  evidence,  the  warranty  alleged  in  the 
declaration,  and  also  a  breach  of  such  warranty  as  therein  stated; 
and  if,  after  carefully  considering  all  the  evidence  in  the  case, 
you  find  the  weight  of  the  evidence  is  with  the  plaintiff  upon 
either  of  these  points,  or  is  equal  in  weight  with  that  of  the 
defendant,  regarding  either  the  warranty  ol-  the  breach  of  it,  then, 
as  a  matter  of  law,  you  should  find  in  favor  of  the  plaintiff  upon 
the  question  of  warranty. 

Measure  of  Damages. — The  jury  are  instructed,  that  the  measure 
of  damages  for  a  breach  of  warranty  of  the  soundness  or  quality 
of  an  article  of  personal  property  is  the  difference  between  the 
actual  value  of  the  defective  article  at  the  time  of  the  sale  and 
what  it  would  have  been  worth  if  it  had  been  as  warranted. 
Ferguson  vs.  Hosier,  58  Ind.,  438;  Aultman  vs.  Iletherington, 
42  Wis.,  622. 

If  the  jury  believe,  from  the  evidence,  that  the  plaintiff  sold 
goods  to  the  defendant,  and  expressly  warranted  them,  or  at  the 
time  of  the  contract  used  any  words  which  were  intended  to 
lead,  and  which  did,  in  fact,  lead  the  defendant  to  believe  that 
plaintiff  intended  to  warrant  the  quality  of  said  goods,  in  man- 
ner and  form  as  charged  in  the  declaration,  and  that  the  goods  so 
sold  did  not  fill  the  warranty,  and  for  that  reason  were  not  as 
good  in  quality  as  those  contracted  to  be  sold  to  the  defendant, 
then  the  defendant  is  entitled  to  a  reduction  from  the  plaintiff's 
claim  to  an  amount  equal  to  the  difference  between  the  actual 
value  of  the  goods  and  what  they  would  have  been  worth  if  they 
had  answered  the  warranty. 


432  INSTKUCTIONS 


Wl  LLS. 

Note.— On  the  subject  of  contestinf^r  wills,  the  references  are  mainly 
confined  to  Redficld  on  "Wills,  and  to  Jarman  on  Wills,  iith  Am.  Ed.  It  has 
not  been  deemed  necessary  to  refer  extensively  to  other  authorities,  fov  the 
reason  that  in  these  works,  and  more  particularly  in  the  notes  to  Jai-man  on 
Wills,  by  Randolph  and  Talcott,  nearly  all  the  leading  cases,  pro  and  con., 
are  collated  and  reviewed. 

The  Ri!?ht  to  Make  a  Will. — Tlie  court  instructs  the  jury,  as  a 
matter  of  law,  that  every  person  of  {competent  age,  a.s  fixed  hij 
statute,)  and  of  sound  mind,  has  a  right  to  make  a  disposition 
of  his  estate  by  will,  and  to  so  devise  his  property  as  to  divest 
those  who  would  otlierwise  inlicrit  it  as  his  legal  heirs,  of  their  in- 
terest therein.  Generally,  the  object  of  a  last  will  and  testament 
is  to  enable  the  testator  to  devise  his  property  as  to  him  may  seem 
best. 

Relatives  Have  no  Le!,'-al  or  Natural  Rig-lits,  Etc. — The  jury  are  in- 
structed, that  no  ne.\t  of  kin.  no  matter  how  near  they  nuiy  l)e, 
(;an  be  said  to  have  any  equitable  right  to  their  kinsnuxn^s  estate, 
which  can  be  asserted  against  the  will  of  said  kinsman.  The 
law  of  the  land  has  placed  every  person's  estate  wliolly  under 
the  control  of  the  owner,  subject  to  such  linal  disposition  of  it  as 
he  may  choose  to  make  by  his  last  will  and  testament,  limited 
only  by  the  statutory  rights  of  his  widow. 

Children  have  no  natural  or  legal  riglit  to  the  estate  of  tlieir 
father  which  can  be  asserted  against  his  disposition  of  it  l)v  will. 

All  parents  have  a  right  to  judge  as  to  who  arc  the  proper  ob- 
jects of  their  bounty;  and,  if  free  from  undue  influence  and 
insane  delusions,  and  of  sufficierit  mental  capacity,  nuiy  give 
their  property  to  any  person  whomsoever.  A  child  has  no  natural 
right  to  the  estate  of  its  father  which  coui'ts  or  jui-ies  can  i-ecog- 
nize  against  iJie  Avill  of  the  i'atlier. 

A  man  may  change  his  will  as  often  as  it  pleases  him  to  do 
so,  and  (^f  itself  it  is  no  evidence  against  the  validity  of  the  last 
will,  that  a  testator  had  executed  previous  wills,  different  in  their 
character  from  the  one  last  executed. 


IN    CIVIL    ACTIONS.  433 

The  jury  have  nothing  to  do  with  the  equity  or  inequity  of 
the  testanientaiy  dispositions  of  property;  provided,  the  jury 
believe,  from  the  evidence,  tliat  the  alleged  testator  had  suffi- 
^cient  mental  capacity  to  make  a  will,  as  explained  in  these 
instructions,  and  that  the  will  was  made  of  his  own  free  will  by 
the  testator. 

Essentials  of  a  Will— (See  Different  Statutes.) — The  court  instructs 
the  jury,  that  to  entitle  a  will  to  probate  four  things  must  con- 
cur : 

Mrst.  It  must  be  in  writing,  and  signed  by  the  testator,  or 
in  his  presence  by  some  one  under  his  direction. 

Second.  It  must  be  attested  by  two  or  more  credible  wit- 
nesses. 

Third.  Two  of  the  attesting  witnesses  must  testify  that  they 
saw  the  testator  sign  the  will  in  their  presence,  or  that  he 
acknowledged  the  same  to  be  his  act  and  deed. 

Fourth.  The  two  witnesses  must  declare  on  oath,  or  affirma- 
tion, that  they  l^elieve  the  testator  to  have  been  of  sound  mind 
and  memory  at  tlie  time  of  signing  or  acknowledging  the  same. 

The  Jury  Sliould  Take  the  Law  from  the  Court. — The  court  instructs  \ 

the  jury,  that  it  is  their  sworn  duty,  as  jurors,  to  accept  the  law  \ 

of  this  case  from  the  court;  and  the  jury  are  not  permitted  to 
determine  what  the  law  is  according  to  their  own  unaided  judg- 
ments, but,  in  arriving  at  a  conclusion,  they  must  determine  the 
question  of  facts  from  the  evidence,  and  be  governed  by  the 
instruction  of  the  court  as  to  the  law. 

Witnessing  Will— What  is  Sufficient— (See  the  Different  Statutes). — The 
court  instructs  the  jury,  that  if  they  Ijelieve,  from  the  evidence, 
(given  by  the  subscribing  witnesses),  that  the  deceased  signed  the 
paper,  purporting  to  be  his  will,  in  the  presence  of  one  of  the 
subscribing  witnesses,  and  acknowledged  it  to  be  his  act  and  deed 
to  the  other,  and  that  they  subscribed  the  same  as  such  witnesses, 
at  his  request  and  in  his  presence;  and  if  the  jury  further  be- 
lieve, that  the  deceased  was  of  sound  mind  and  memory  at  the 
time,  then  tuis  is  a  compliance  with  the  law,  and  \^  prima  facie 
evidence  of  the  due  execution  of  the  will. 

28 


434  I X  s  T  K  r  c  T 1 0  X  s 

Tlie  conrt  in>tnicts  the  jurv,  that  it  i:^  not  nocessarv  that  the 
sul)Seriltiiiir  witnesses  shoiihl  know  at  tlic  time  of  attesting  it  that 
it  is  the  Avill,  or  that  tliey  shonhl  know  tlie  contents  of  it. 

If  the  witnesses  to  a  will,  while  sio-ninijf  their  names  thereto, 
as  such  witnesses,  are  in  siieh  a  jtlaci;  that  the  testator  can  see 
them,  if  he  ehooses  to,  they  are  to  he  rei^arded  as  in  his  presenee, 
M'ithin  the  meaning  of  the  statute,  and  it  is  not  necessary  that 
thev  shall  he  in  the  same  room  with  the  testator,  or  that  he  shall 
actually  see  them  sign.     Anihre  vs.  Wclahaar,  74  111.,  100, 

IXSAXITY    OR    UXSOrxn    MIND. 

Issue  to  be  Tried. — The  jni-y  are  instructed,  that  the  oidy  ques- 
tion in  this  case  for  them  to  try  is  this:  Is  the  writing  offered  the 
will  of  A.  I*).,  deceased;  and  your  verdict  will  l)e,  either  that  it 
is  his  will,  or  that  it  is  not. 

The  question  to  he  passed  \\\)o\\  l»y  the  jury  is  this:  AVas  the  mind 
and  memory  of  the  deceased,  at  the  time  of  the  making  of  the 
alleged  will,  sufficiently  sound  to  enahle  him  to  know  and  under- 
stand the  business  in  which  he  was  engaged  at  the  time  he  exe- 
cuted the  will,  judging  his  conqictence  of  mind  by  the  nature  of 
the  act  to  be  done,  and  from  a  consideration  of  all  the  circum- 
stances in  the  case.      TrUk  vs.  Ncicell,  02  HI.,  liM^ 

That  in  the  examination  of  wills,  the  sanity  or  insanity  of  the 
testator  is  always  a  question  of  fact,  to  be  decided  l>y  the  jury 
upon  the  whole  evidence,  according  to  the  plain  }n-inciples  of 
connnon  sense. 

Ilurden  of  Proof. — The  jury  are  instructed,  that  when  a  will  is 
proved,  including  soundness  of  mind  and  memory,  on  the  part  of 
the  testator,  by  the  testimony  of  two  sul)scribing  witnesses,  and 
unsoundness  of  mind  is  alleged  as  a  ground  for  sertill^•  the  will 
aside,  the  fact  of  insanity,  or  of  unsoundness  of  mind,  nmst  bi', 
established  with  reasonable  certainty;  the  evidence  of  insanity 
should  pi-eponderate,  or  the  will  must  be  taken  as  valid.  If  ther.» 
is  only  a  bare  balance  of  evidence,  or  a  mere  doubt  only  t)f  the 
sanity  of  the  testator,  the  presumption  in  favt»r  of  sanity,  if 
])roved  as  al)ove  stated,  must  turn  the  scale  in  favor  of  the  sanity 
of  the  testator.     Jarman   on  Wills,  5   Am.    ICd.,    1<I4;    lied,  (ju 


IN    CIVIL    ACTIONS.  4.ja 

AVills,  31-50;  Perkins  vs.  Fe/'kins,  39  K.  H.,  163;  Brooks  vs. 
Barrett,  7  Pick.,  94;  Turner  vs.  Cook,  36  Ind.,  129;  Dickie  vs. 
Carter,  42  111.,  376;  Terr//  vs.  Buffington,  11  Ga.,  337;  /^i  m 
Cqfnum,  12  la.,  491;    6'(>/^^/i  vs.  ^/me/-,  45  Ala.,  378. 

The  court  instructs  the  jury,  as  a  matter  of  law,  that  when  the 
party  insisting  on  the  probate  of  the  will  has  established  the 
sanity  of  the  testator  at  the  making  of  the  will,  by  the  oath  or 
affirmation  of  two  of  the  subscribing  witnesses,  and  that  the  will 
was  legally  executed,  acknowledged  and  witnessed,  as  explained 
in  these  instructions,  then  a  2:)rima  facie  case  is  made  out;  and 
in  such  a  case,  the  party  seeking  to  contest  the  will,  on  the 
ground  of  insanity,  fraud,  compulsion  or  for  any  other  cause, 
takes  upon  himself  the  burden  of  proving  the  ground  relied 
upon;  and  the  cause  relied  upon  must  be  proved,  by  a  prepon- 
derance of  evidence;  and  if  the  question  is  left  evenly  balanced, 
the  verdict  should  be  in  favor  of  the  validity  of  the  will. 

The  jury  are  instructed,  that  the  burden  of  proof  is  upon  the 
party  asserting  the  sufficiency  of  the  will  to  prove  that  at  the 
time  of  its  execution  the  testator  was  of  sound  mind  and  memory, 
within  the  meaning  of  the  law,  as  explained  in  these  instruc- 
tions, and  this  is  to  be  determined  by  the  jury,  not  alone  from 
the  statements  or  evidence  of  any  one  or  more  persons,  or  class 
of  witnesses,  but  from  a  consideration  of  the  whole  of  the  evi- 
dence in  the  case. 

Sound  and  Disposing  Mind  and  Memory. — The  law  is,  that  to  be  of 
sound  and  disj)osing  mind  and  memory,  so  as  to  be  capable  of 
making  a  valid  will,  it  is  sufficient  if  the  testator  has  an  under- 
standino;  of  the  nature  of  the  business  in  which  he  is  eno-ao-ed — 
a  recollection  of  the  property  he  means  to  dispose  of — of  the 
persons  who  are  the  objects  of  his  bounty,  and  the  manner  in 
which  it  is  to  be  distributed  among  them.  It  is  not  necessary 
that  he  should  comprehend  the  provisions  of  his  will  in  their 
legal  form.  It  is  sufficient  if  he  understands  the  actual  dispo- 
sition which  he  is  making  of  his  property  at  the  time. 

If  the  mind  and  memory  of  a  testator  are  sufficiently  sound  to 
enable  him  to  know  and  understand  the  extent  and  amount  of  his 
property,  and  his  just  relations  to  the  natural  objects  of  his 
bounty,  and  the  business  in  which  he  is  engaged,  at  the  time  of 


436  INSTRUCTIONS 

executino:  liis  will,  then  lie  is  of  sound  mind  and  nieniorv  within 
the  meaning  of  the  law.  Jarman  on  Wills,  5  ^Vm.  Ed.,  lOo,  et 
,V67./  1  Red.  on  Wills,  12;M :'.:.. 

The  court  instructs  the  jury,  that  while  it  is  true,  as  a  general 
rule,  that  a  nuin  may,  by  a  will,  do  with  his  property  whatever 
he  may  choose,  yet,  to  this  rule  there  exists  this  exception  —  that 
he  cannot  do  so  when  there  exists  in  him  a  defect  of  testament- 
ary capacity.  And  such  defect  exists  when  a  man  is  laboring 
under  (partial)  insanity,  if  it  is  sutHcient  to  affect  the  disposition 
of  his  property,  or  when  he  is  laboring  under  some  insane  delu- 
sion as  to  some  subject,  matter  or  person,  which  affects  the 
provisions  of  the  will  which  he  has  attempted  to  make.  1  Red. 
on  AVills,  G7,  08;  Jarman  on  Wills,  72. 

Test  of  TostaiiKMitary  Capacity. — The  jury  are  instructed,  that  a 
testator  not  affected  with  any  morbid  or  insane  delusion  as  to  any 
of  the  natural  objects  of  his  bounty,  possesses  testamentary  capac- 
ity within  the  meaning  of  the  law,  if  he  has  a  clear  understand- 
ing of  the  nature  of  the  business  in  whicli  he  is  engaged,  of  the 
kind  and  value  of  the  property  devised,  and  of  the  persons  who 
ai'c  the  natural  objects  of  his  bounty,  and  of  the  manner  in  which 
he  desii'es  his  property  to  be  distributed. 

That  in  determining  whether  a  iia])er,  if  it  has  been  executed 
in  due  form  of  law,  .is  a  will,  is  in  fa(;t  a  valid  will,  the  real 
(juestion  to  be  determined  is,  whether  the  testator  had  an  under- 
standing of  the  nature  of  what  he  was  doing,  a  recollection  of  the 
property  he  meant  to  dispose  of,  and  of  the  persons  to  whom  he 
meant  to  convey  it,  and  of  the  manner  in  which  lu;  meant  to 
distribute  it  among  them.  IJy  all  this  is  meant  not  niei-ely  that 
the  deceased  was  aware  that  he  was  making  a  will,  and  was 
thereby  disposing  of  his  propei-ty  among  persons  whose  names 
he  remembered,  and  was  so  disposing  of  it  in  a  certain  way,  but 
the  law  requires  that  a  testator  shall  have  a  rational  under- 
standing and  comprehension  of  all  these  things,  and  of  the  con- 
sequences of  his  act,  and  an  intelligent  purpose  and  determina- 
tion so  to  dispose  of  his  property,  as  the  result  of  the  free  action 
of  a  rati(jnal  and  sane  mind. 

Testamentary  (,'aimcity. — 'I'lie  jury  ai'C  instructed,  that  M'hat  is 
meant  by  testamentary  capacity,  as  used  in  these  instructions,  is 


IN    CIVIL    ACTIONS.  437 

a  rational  understanding  on  the  part  of  the  testator  at  the  time 
of  the  making  of  his  will,  of  the  business  he  was  engaged  in,  (jf 
the  kind  and  value  of  the  proj^erty  devised,  of  the  persons  who 
were  the  natural  objects  of  his  bounty,  and  of  the  manner  in 
which  he  wished  to  dispose  of  his  property,  unaffected  by  any 
morbid  and  insane  delusion  regarding  any  of  these  subjects. 

The  jury  are  instructed,  that  although  a  testator  may  not  have 
sufficient  capacity  to  make  contracts  and  do  business  generally, 
he  may,  nevertheless,  have  sufficient  capacity  to  make  a  will.  It 
is  not  necessary  that  a  testator,  at  the  time  of  makiu"-  his  will, 
should  have  sufficient  capacity  to  engage  in  complex  and  intri- 
cate business  matters;  if,  at  the  time  of  making  his  will,  he  is 
capable  of  understanding  the  nature  of  the  business,  the  nature 
and  extent  of  his  property,  and  tlie  persons  to  whom  he  means 
to  convey  it,  and  the  mode  of  distribution  among  them,  it  is  suf- 
ficient; provided  he  is  laboring  under  no  insane  delusion  upon 
any  of  the  subjects  upon  which  he  is  acting. 

Partial  Insanity— Monomaiua. — The  court  instructs  the  jury,  that 
"a  man  who  is  very  sober  and  of  right  understanding  in  all  other 
things,  may,  in  some  one  or  more  particulars,"  be  insane;  that 
there  is  a  partial  insanity,  and  a  total  insanity;  and  that  such 
partial  insanity  may  exist  as  it  respects  particular  persons, 
things,  or  subjects,  while  as  to  others  tlie  person  may  not  be 
destitute  of  the  use  of  reason.  1  Red.  on  Wills,  03:  Jarman  on 
Wills,  5  Am.  Ed.,  77,  113. 

The  court  instructs  the  jury,  that  it  is  not  sufficient,  of  itself, 
that  a  man  should  be  able  to  describe  his  feelings,  or  give  suit- 
able answers  to  ordinary  cpiestions;  this  he  may  do,  aiul  yet  the 
mind  may  be  too  much  diseased  to  enable  him  to  dispose  of  his 
estate  with  understanding  and  discretion. 

The  jury  are  further  instructed,  that  although  a  testator  has 
some  insane  delusion  upon  some  subjects,  yet,  if  he  has  mind 
enough  to  know  and  appreciate  his  relation  to  the  natural  ob- 
jects of  his  bounty,  and  the  character  and  effect  of  the  disposi- 
tions of  his  property,  then  he  has  a  mind  sufficiently  sound  to 
make  a  valid  will. 

That  when  a  man  Is  of  unsound  mind  as  to  the  natural 
objects  of  his  bounty,  or  the  proper  and  reasonable  distribution 


438  INSTRUCTIONS 

to  them  of  liis  estate,  he  cannot  be  regarded  as  a  free  a<::;ent  in 
making  his  will,  or  as  of  sound  mind  and  memory,  though  he 
may  be  so  as  to  all  other  pei-sons  and  matters. 

Tliat  the  law  recognizes  the  difference  between  general  and 
partial  rnsanity,  and  if  the  jury  believe,  from  the  evidence,  that 
the  will  here  offered  was  made  under  the  iniluence  of  partial 
insanity,  and  is  the  product  of  it,  it  is  as  invalid  as  if  made 
\mder  the  elTects  of  an  insanity  ever  so  general. 

Tliat  unsoundness  of  mind  embraces  every  species  of  mental 
incapacity,  from  raging  mania  to  that  delicate  and  extreme 
feebleness  of  mind  which  approaches  nearer  to,  and  degenerates 
into  idiocy. 

That  disposing  mind  and  memory  is  a  mind  and  memory 
which  have  a  capacity  for  regarding  and  discriminating,  and 
feeling  the  relations,  connections,  and  obligations  of  family  and 
bkx)d. 

That  a  person  may  have,  npon  some  subjects,  and  even  gen- 
erally, mind  and  memory,  and  sense,  to  know  and  comprehend 
ordinary  transactions,  and  yet  upon  the  subject  of  those  who 
would  naturally  be  the  objects  of  his  care  and  bomity,  and  of  a 
reasonable  and  proper  disposition  as  to  them  of  his  estate,  he 
may  be  of  unsound  mind. 

That  a  man  may  be  insane  upon  one  particular  subject,  and 
one  only,  or  he  may  be  insane  as  to  a  number  of  subjects,  or  he 
maybe  generally  insane;  and  the  law  recognizes  the  existence 
of  partial  insanity  as  well  as  of  general  insanity. 

Delusion— Regarding  Viife  or  Child's  Property. — The  court  instructs 
the  jurv,  that  if  they  believe,  from  the  evidence  in  this  case, that 
at  the  time  the  will  in  controversy  M'as  executed,  the  testator  was 
laboring  under  an  insane  delusion  in  regard  to  the  vahie  of  liis 
wife's  property,  and  that  he  was  influenced  or  controlled  in  the 
making  of  said  will,  by  said  delusion,  or  that  the  said  testator 
was  laboriuiT  under  an  insane  delusion  in  regard  to  what  amount 
of  property  he  had  already  given  to  his  daughter,  and  that  m 
juakinir  said  will  he  was  influeiu-ed  or  conti-olled  bv  such 
delusion,  then  the  said  testator  was  not  of  sound  mind  and 
memory,  as  is  contemplated  and  re(piired  by  tlie  law,  and  any 
paper  purporting  to  be  a  will  executed  by  him  under  such  cir- 


IN    CIVIL    ACTIONS.  439 

ciimstances,  is  not  a  valid  and  legal  will,  and  the  jury  should 
find  the  issues  for  the  contestants.  1  Red.  on  Wills,  72,  90 ;  1 
Jarni.  on  Wills,  100  et  seq. 

The  court  instructs  the  jury,  that  the  law  means  by  the 
expression  "a  morbid  and  insane  delusion,"  the  belief  of  the 
existence  of  a  state  of  supposed  facts,  which  no  rational  person 
would  have  believed;  and  a  proper  way  of  determining  whether 
any  belief  is  a  delusion,  is  for  the  juror  to  ask  himself  the  ques- 
tion: Can  I  understand  how  any  man  in  possession  of  his  senses 
could  have  believed  this  thing?  and  if  the  answer  you  give  is: 
"  I  cannot  nnderstand  how  a  man  in  possession  of  his  senses 
could  have  believed  it,"  then  it  is  of  the  necessity  of  the  case 
that  you  should  say  that  such  a  man  was  not  sane  on  that  subject. 

Sanity  is  Presumed. — The  court  instructs  the  jury,  that  in  all 
cases  involving  questions  of  sanity  and  insanity,  jprima  facie ^ 
the  person  is  sane,  and  when  there  is  only  evidence  sufficient  to 
raise  a  doubt  of  a  person's  insanity,  the  presumption  in  favor  of 
sanity  must  prevail.  When  a  will  or  other  instrument  is  made 
by  a  person  of  competent  age,  and  under  no  legal  disability,  it 
will  be  taken  and  held  to  be  valid  and  binding  until  incom- 
petency is  established,  by  a  preponderance  of  evidence.  Wyatt 
vs.  Walker,  4-i  111.,  485. 

Insanity— How  Determined. — The  jury  are  instructed,  that  in  de- 
termining whether  or  not  a  man  is  insane,  he  should  be  com- 
pared with  himself,  and  not  with  others.  His  manner,  talk  and 
actions  at  a  time  when  it  is  alleged  he  was  insane,  should  be 
compared  with  his  manner,  talk  and  action  at  a  time  when  he 
wao  sane. 

Settled  Insanity  Presumed  to  Continue. — The  jury  are  instructed 
that  when  settled  insanity  is  once  shown  to  exist,  it  is  presumed 
to  continue  until  restoration  to  reason  is  shown;  but  such  pre- 
sumption arises  only  in  cases  of  settled  insanity,  and  if  complete 
restoration  of  reason  is  shown,  then  no  more  presumption  of  in- 
sanity arises  in  the  case  of  the  execution  of  a  will  than  if  the 
testator's  mind  had  never  been  affected.     1  Red.  on  Wills,  112. 

While  it  is  true  that,  in  the  absence  of  any  evidence,  the  law 
always  presumes  that  a  man  is  sane,  yet  if  insanity,  either  partial 


440  INSTRUCTIONS 

or  total,  be  proved  to  exist  at  any  time  before  tbe  making  of  a 
will,  it  will  be  presumed  to  have  continued,  unless  the  contrary 
be  shown,  l)y  a  preponderance  of  the  evidence. 

Intoxication. — The  jury  are  instructed,  that  neither  intoxication 
nor  the  actual  stimulus  of  iutoxicatin<i;  litjuor  at  the  time  of  exe- 
cutiui^  a  will  incapacitates  the  testator,  unless  the  excitement  Ik; 
such  as  to  disorder  his  faculties  and  pervert  his  judgment.  1 
Jarman  on  Wills,  5  Am.  Ed.,  97;  Gore  vs.  Gibson,  13  M.  &  W., 
623;  Gardner  vs.  Gardner,  22  AVend.,  526;  Thompson  vs. 
Kyner,  65  Pa.  St.,  368. 

Drunkenness  Insanity,  Wlien. — The  court  instructs  the  jur\-,  that 
drunkenness  itself  is  a  species  of  insanity,  and  may  invalidate 
a  Avill  made  during  the  drunken  fit;  and  long-continued  liabit 
of  intemperance  may  gradually  impair  the  mind  and  destroy  its 
faculties,  so  as  to  produce  insanity  of  another  kind;  druidcenncss 
long  continued,  or  much  indulged  in,  may  produce  on  some 
minds  and  with  some  temperaments,  permanent  derangement 
and  fixed  insanity.  "Whether  in  this  case  intemperate  habits  or 
drunkenness  on  the  part  of  the  deceased  have  been  proved,  and 
whether  his  mind  Avas  thereby  affected,  and  to  what  extent,  if 
any,  are  questions  of  fact  to  be  determined  by  the  jury,  from  a 
consideration  of  all  the  evidence.  1  Red.  ou  "Wills,  160-162;  1 
Jarm.  on  Wills,  5  Am.  Ed.,  97. 

Intoxiciition  May  rrodncc  Insanity. — The  court  instructs  the  jnry, 
that  while  it  is  not  the  law,  that  a  dissipated  man  cannot  execute 
a  will,  nor  that  one  wlio  is  in  the  habit  of  excessive  indulgence 
in  strong  drink  must  be  wholly  free  from  its  influence  when 
performing  such  an  act;  yet  if  fixed  mental  disease  has  super- 
vened upon  intemperate  habits,  the  man  is  as  incompetent  to 
execute  a  valid  will  as  though  such  mental  disorder  resulted 
from  any  other  cause. 

Failure  of  Memory. —  If  Hie  testator's  mind  is  sound,  althougli 
his  memory  may  l>e  impaired,  lie  may  be  of  sound  mind  and 
memory  in  the  sense  in  which  the  phrase  is  used  in  law;  and  in 
order  to  destroy  the  capacity  of  a  person  to  make  a  will,  ou  ac- 


IN    CIVIL    ACTIONS  441 

count  of  failure  of  memory,  the  failure  must  be  such  as  to  ex- 
tend to  his  immediate  family,  relatives .  and  friends,  and  the 
nature,  extent  and  value  of  his  property. 

Old  Age  Alone  Does  Not  Incapacitate. — The  jury  are  instructed,  that 
a  man  may  freely  make  his  last  will  and  testament,  no  matter 
how  old  he  maybe;  provided,  he  has  the  requisite  mental  capac- 
ity, and  is  a  free  agent  in  making  it.  The  control  which  the 
law  gives  a  man  over  the  disposal  of  his  property  may  be  one  of 
the  most  efficient  means  he  has  in  old  age  of  commanding  the 
attentions  usually  required  by  his  infirmities. 

Previonsly  Expressed  Purposes. — The  court  instructs  the  jury,  that 
in  determining  whether  the  paper  in  question  offered  as  a  will  is 
entitled  to  be  so  regarded,  the  paper  itself  may  be  considered  in 
connection  with  all  the  other  evidence  in  the  case  in  determining 
the  question  of  sanity  or  unsoundness  of  mind.  And  if  the  jury 
believe,  from  the  evidence,  that  the  deceased,  before  executing 
the  will,  had  expressed  any  fixed  purposes  and  intentions  regard- 
ing the  disposition  of  his  property,  at  variance  with  the  pro- 
visions of  the  alleged  will,  then  the  jury  should  consider  whether 
or  not  the  provisions  of  the  will  are  inconsistent  with  sanity 
itself,  and  with  his  previously  expressed  and  fixed  purposes,  and 
if  the  jury  find  that  they  are  so,  then  these  facts  also  should  be 
weighed  by  the  jury  in  determining  the  question  of  sanity  or 
unsoundness  of  mind  of  the  deceased  at  the  time  of  its  execution. 

Will  may  be  Referred  to  as  Showing,  Etc. — The  jury  are  instructed, 
that  while  the  provisions  of  the  will  may  be  considered  by  the 
jury,  in  connection  with  all  the  other  evidence  in  the  case,  for 
the  purpose  of  determining  the  mental  condition  of  the  testator 
at  the  time  of  its  execution;  still,  in  order  to  defeat  the  will 
upon  the  ground  alone  of  the  character  of  such  dispositions, 
they  must  not  only  be  in  some  degree  extravagant,  and  appa- 
rently unreasonable,  but  they  must  depart  so  far  from  what 
should  be  regarded  as  natural  and  apparently  reasonable,  as  to 
appear  fairly  attributable  to  no  other  cause  than  that  of  a  dis- 
ordered intellect  or  unsound  mind. 


442  INSTRUCTIONS 

The  jury  arc  instructed  that  tlie  uiicijual  disti-ihiitioii  of  his 
property,  by  will,  is  not  of  itself  any  evidence  of  the  insanity  of 
the  testator. 

That  in  deterniinini;-  the  (|uesti()n  of  the  validity  dl"  this  will 
the  jui-y  have  a  rio;lit,  and  it  is  their  duty,  to  take  into  consider- 
ation, the  provisions  of  the  will  itself  in  connection  with  all  the 
<^>ther  evidence  that  has  been  offered  in  reference  to  the  (piestiou 
whether  the  deceased  was,  or  w^as  not,  of  sound  mind  and 
memory  at  the  time  of  its  execution. 

Expert  Testimony. — That  the  testimony  of  medical  nu^n  of  lai'i^e 
experience  in  their  profession,  upon  the  question  of  the  exist- 
ence or  non-existence  of  soundness  of  mind,  is,  as  a  u-encral  rule, 
entitled  to  more  consideration  than  the  testimony  of  unprofes- 
sional M'itnesses  who  have  not  devoted  their  attention  to  the 
same  class  of  studies. 

The  jury  are  instructed,  that  while  it  is  true  that  the  testimony  of 
medical  men  of  large  experience,  as  a  general  rule,  in  this  class  of 
cases,  is  entitled  to  more  consideration  or  weight  in  the  minds  of 
the  jury  than  that  of  unprofessional  men;  still,  whetlicr  the  tes- 
timony of  the  medical  men,  who  have  testified  in  this  case,  is  en- 
titled to  more  weight  than  that  of  other  witnesses,  is  a  (juestion 
entirely  for  the  jury,  to  be  determined  by  them  from  a  careful 
consideration  of  all  the  evidence  in  the  case. 

Testimony  of  Snhsoribina:  Witnesses.  —  The  court  instructs  the  jurv, 
that  the  mere  fact  that  a  person  is  a  subscribing  witness  to  a 
will,  docs  not  entitle  his  opinion  of  the  competency  of  the  tes- 
tator to  execute  the  same,  to  any  more  weight  than  th(>  opinion 
of  any  other  witness  equally  credible  and  intelligent,  and  with 
equal  opportunities  for  judging;  and  if  it  hapjH'us  that  lie  is 
selected,  at  the  moment,  merely  for  the  pui-pose  of  mei'ting  the 
legal  requirements,  his  opinion  as  to  the  testator's  strength  of 
mind  may  l)e  of  very  little  weight  or  importance. 

The  court  instructs  the  jurv,  that  the  weight  of  tlie  evidence 
from  the  opinions  of  subscribing  witnesses,  depends  upon  the 
same  considerations  which  affect  the  weight  of  the  ()})inion  of 
any  other  witnesses  upon  the  question  of  the  tcsta^)r's  com- 
petency.    "Whether  a  subscribing  witness  (;r  not,  wo  must  look 


IN    CIVIL    ACTIONS.  443 

at  tlie  intelligence  of  the  man,  and  the  means  he  enjoyed  of 
forming  the  opinion  which  he  advances,  and  give  little  or  more 
weight  to  his  opinion  accordingly. 

UNDUE    INFLUENCE. 

Issue  to  be  Tried. — Tlie  jury  are  instructed,  as  a  matter  of  law, 
the  only  question,  in  this  case,  for  them  to  try,  is  this:  Is  the 
writing  here  offered  the  will  of  A.  B.,  deceased^  and  your  ver- 
dict will  be,  that  it  is  his  will  or  that  it  is  not. 

And  the  real  inquiry  to  be  determined  is:  Did  the  said  A.  I>., 
deceased,  make  and  execute  the  alleged  will,  in  all  its  provisions, 
of  his  own  free  will  and  volition,  so  that  it  now  expresses  his 
own  wishes  and  intention,  or  was  he  constrained  or  coerced, 
through  the  undue  influence,  restraint  or  coercion  of  others,  in 
making  his  will,  to  act  against  his  own  desire  and  intention,  as 
regards  the  disposition  of  his  property,  or  any  part  of  it? 

No  General  Rule  — What  Must  Appear. — The  jury  are  instructed, 
that  no  general  rule  can  be  laid  down  as  to  what  constitutes 
undue  influence  in  this  class  of  cases  further  than  this,  that  in 
order  to  make  a  good  will  a  man  must  be  a  free  as-ent,  and  feel 
at  liberty  to  carry  out  his  own  wishes  and  desires;  and  any 
restraint,  threats  or  intimidations  brought  to  bear  upon  the  tes- 
tator, which  he  has  not  the  strength  of  mind  or  will  to  resist,  if 
exerted  so  as  to  coerce  him  against  his  desire  and  j^urpose  into 
the  making  of  his  will,  or  any  of  its  provisions,  is  undue  influ- 
ence within  the  meaning  of  the  law.  And  whether  such  undue 
influence  existed  in  this  case,  must  be  determined  by  the  jury, 
from  a  consideration  of  all  the  evidence,  in  view  of  the  law  as 
given  you  by  the  court. 

That  the  influence  exercised  over  a  testator  which  the  law 
regards  as  undue  or  illegal,  must  be  such  as  to  destroy  his  fi-ee 
agency  in  the  matter  of  making  his  will;  but  it  matters  not  how 
little  the  influence,  if  the  free  agency  is  destroyed  it  vitiates  tlic 
;u't  which  is  the  result  of  it;  and  the  amount  of  undue  influence 
wliicli  will  be  suflicicnt  to  invalidate  a  will  may  vary  with  the 
strength  or  weakness  of  the  mind  of  the  testator;  and  the  influ- 
ence which  would  subdue  and  control  a  mind  and  will  naturally 


4-i4r  I  N  S  T  R  f  O  TI  O  N  S 

weak,  or  one  which  had  become  impaired  by  ai2;e,  disease,  or 
other  cause,  might  have  no  effect  to  overcome  a  mind  naturally 
strong  and  unimpaired. 

That  to  avoid  a  will  on  the  ground  of  undue  iullueiu-e,  it 
must  l)e  made  to  appear,  by  the  evidence,  tiiat  it  was  obtained 
by  means  of  influence  amounting  to  moral  coercion,  destroying 
free  agency,  or  by  importunity  which  could  not  be  resisted,  so 
that  the  testator  was  constrained  to  do  that  which  was  against 
his  actual  will,  and  which  iiiiluence  he  was  unable  to  withstand, 
or  too  weak  to  resist.  Brick  vs.  Brick,  (iO  N.  Y.,  144;  Jjcirnes 
vs.  Barnes,  (SQ  Me.,  285. 

The  exercise  of  undue  influence  need  not  l)e  shown  by  direct 
proof;  it  may  be  inferred  from  circumstances;  but  the  circum- 
stances must  be  such  as  to  lead  justly  to  the  inference  that 
undue  influence  was  employed,  and  tliat  the  will  did  not  express 
the  real  wishes  of  the  testator. 

The  jury  are  instructed,  that  any  influence  exercised  upon  the 
testator,  if  proved,  by  reason  of  which  his  mind  was  so  embai-- 
rassed  and  restrained  in  its  oi)erations  that  he  was  ]U)t  master  of 
his  own  opinions  and  wishes,  in  respect  to  the  disposition  of  his 
estate,  was  undue  influence  within  the  meaning  of  the  law. 

That  any  command  or  importunity  addressed  to  the  testator, 
if  carried  to  such  a  degree  as  to  contrtd  t)r  restrain  the  free  play 
of  his  will,  judgment,  or  discretion,  in  any  matter  affecting  his 
will,  was  undue  influence;  and,  if  proved,  in  this  case,  will 
render  the  will  in  (picstion  invalid,  though  no  force  was  used  (,)r 
threatened. 

Undue  Influence  Must  AfToct  the  Will,  Etc. — That  to  invalidate  a 
will,  on  the  ground  of  undue  influence,  it  must  appear,  by  a 
preponderance  of  the  evidence,  that  such  undue  influence  wa> 
practiced  with  respect  to  the  will,  or  as  to  some  matter  or  circum- 
stance so  connected  with  it,  as  to  raise  a  presnn)i)ti()n  that  such 
undue  influence  affected  the  provisions  of  the  will;  any  degi-ee 
of  infliuuice  exercised  over  the  testator  which  docs  not  affe(;t  the 
making  of  the  will  or  any  of  its  provisions  cannot  invalidate  it. 

Influence  Must  Destroy  Free  Agency. — That  the  influence  whirli 
M'ill  vitiate  avill  (^i  the  ground  of  undue  inlliK;nce  must  amount 


IN    CIVIL    ACTIONS.  4-i5 

to  such  a  degree  of  restraint  and  coercion  as  to  destroy  the  testa- 
tor's free  agency.  To  have  that  effect,  in  this  case,  the  jury  niust 
believe,  from  the  evidence,  that  the  will  in  question  was  obtained 
by  such  a  degree  of  restraint  and  coercion  upon  the  mind  and  will 
of  the  deceased  as  to  destroy  his  free  agency  in  some  matter  con- 
nected with  the  will,  so  that  the  will,  itself,  does  not  express  his 
wishes  or  desires,  but  those  of  some  other  person.  It  is  imma- 
terial what  arguments,  influence  or  persuasion  were  brought  to 
bear  upon  the  testator;  provided  only,  that  in  making  his  will  he 
carried  into  effect  his  own  will  and  intention,  and  not  those  of 
another. 

Legitimate  Influence. — The  court  instructs  the  jury,  that  any  de- 
gree of  influence  over  another,  acquired  by  kindness  and  atten- 
tion, can  never  constitute  undue  influence  within  the  meaning  of 
the  law,  and  although  the  jur}^  ^^^^J  believe,  from  the  evidence, 
that  the  deceased,  in  making  his  will,  was  influenced  by  the  said 
A.  B.,  still,  if  the  jury  further  believe,  from  the  evidence,  that 
the  influence  which  was  so  exerted  was  only  such  as  was  gained 
over  the  deceased  by  kindness  and  friendly  attentions  to  him, 
tiien,  such  influence  cannot  be  regarded,  in  law,  as  undue  in- 
fluence, and  the  verdict  should  be  in  favor  of  the  validity  of 
the  will. 

It  is  not  unlawful  for  one,  by  honest  advice  or  pei'suasion,  to 
induce  a  testator  to  make  a  will,  or  to  influence  him  in  the  dis- 
position of  his  property  by  will.  To  vitiate  a  will  on  account 
of  undue  influence  it  must  appear,  from  the  evidence,  that  there 
was  something  wrongfully  done  amounting  to  a  species  of  fraud, 
compulsion  or  other  improper  conduct.  Yoe  vs.  McCord,  7i 
111.,  33. 

It  is  not  unlawful  for  a  person,  by  honest  intercession  and 
persuasion  to  induce  a  will  in  favor  of  himself  or  any  other  per- 
son; neither  is  it  unlawful  to  induce  the  testator  to  make  a  will 
in  one's  favor  by  fair  speeches  and  kind  conduct,  for  this  does 
not  amount  to  that  kind  of  compulsion,  impro])er  conduct  or  un- 
due influence,  which,  in  a  legal  sense,  would  render  invalid  the 
will.  To  have  such  an  effect  it  must  amount  to  a  moral  force 
and  coercion,  destroying  free  agency.  It  must  not  be  the  in- 
fluence of  affection   and  attachment,  nor  be  the  mere    desire 


44C  INSTKU( TIOXS 

to  gnitify  the  wishes  of  unotlicr,  hut  the  compulsion  in  this  case, 
in  order  to  render  the  will  invalid  must  he  t)f  su<'h  a  degree  and 
character  as  to  prevent  the  exercise  of  that  discretion  which  is 
essential  to  a  sound  disposing  mind.  Vickie  vs.  Carter^  42 
in.,  376. 

Letritimate  Advice  or  Tcrsuasion. — That  in  this  case,  though  the 
Jury  may  helieve,  from  the  evidence,  that  the  said  A.  1>.  did  use 
Arguments  and  importunities  to  intluenee  the  deceased  in  the 
making  of  the  will  in  question,  still  this  fact  will,  in  no  mannei*, 
affect  the  validity  of  the  will,  if  the  jury  further  believe,  from 
the  evidence,  that  such  arguments  and  importunities  did  not  de- 
prive the  deceased  of  his  free  agency  or  prevent  him  from  doing 
as  he  pleased  with  his  property,  even  though  the  will  might  have 
been  made  in  all  of  its  provisions  as  it  is,  but  for  such  argument 
and  persuasion. 

Though  the  jury  may  believe,  from  the  evidence,  that  the  tes- 
tator, in  making  the  will  in  question,  acted  upon  the  suggestions 
and  advice,  or  under  the  iulluence,  of  the  said  A.  B.,  this  will 
not,  in  any  manner,  affect  the  validity  of  the  will;  provided,  he 
acted  freely  and  from  his  own  conviction  in  the  disposition  of 
his  property,  though  the  provisions  of  the  will  are  not  the 
same  as  they  would  have  been  l)Ut  for  such  suggestions,  advice  or 
influence. 

Cannot  (Question  Testator's  Motives. — The  jury  arc  instructed,  that 
if,  from  the  evidence,  they  believe  that  the  mind  and  memory  of 
the  testator  was  sufficiently  sound  to  enable  him  to  know  and 
uii(lcr>taiid  the  extent,  nature  and  amount  of  liis  property,  and 
his  ju.^t  relati(jns  to  the  natural  objects  of  his  bounty,  and  to  know 
and  understand  the  l)usiness  in  which  he  was  engaged,  when  he 
executed  his  will,  then  the  jui-y  have  no  right  to  inquire  into  or 
question  the  testator's  motives  for  the  disposition  of  his  estate. 
That  is  a  question  under  the  absolute  d(jminion  of  the  testator. 

Motives  May  be  Inquired  Into,  Wlien.  — That  while  it  is  true  that 
a  testator's  motives  for  the  disposition  of  his  estate  are  not  mat- 
ters affecting  the  validity  of  a  will,  yet,  this  rule  only  applies  in 
ca.ses  where  it  d(^es  not  appear  that  tin-  testator  was  of  unsound 


IN    CIVIL    ACTIONS.  447 

mind,  or  possessed  of  insane  delusions,  which  affected  his  act; 
and  in  this  case,  if  the  jury  believe,  from  the  evidence,  that  at, 
etc.,  the  mind  of  the  deceased  was  affected  by  any  insane  delu- 
sion regarding,  etc.,  and  that  any  of  the  provisions  of  the  alleged 
will  were  prompted  by  motives  based  upon,  or  arising  out  of, 
such  delusion,  this  would  render  the  will  invalid. 

The  court  further  instructs  the  jury,  that  if  it  be  manifest, 
from  the  will  itself,  that  the  testator  believed  that  a  sufficient 
provision  had  been  made  outside  of  the  will  for  the  support  of 
his  wife,  and  if  it  shall  also  be  apparent  from  the  will,  that  in 
the  making  of  the  will  the  testator  was  influenced  by  that  belief, 
and  that  he  would  have  provided  differently  for  her  had  he  not 
entertained  such  belief,  and  if  the  jury  further  find,  from  the 
evidence,  that  such  belief  was  mifounded,  and  had  in  no  manner 
been  reasonably  evidenced  to  him,  then  the  jury  have  a  right 
and  ouo-ht  to  take  these  thino-s  into  consideration  in  determininc: 
whether  the  testator  was  of  sound  mind  when  he  signed  his  will. 

Unlawful  Cohabitation. — Tlie  juiy  are  instructed,  that  illicit 
sexual  intercourse  between  a  testator  and  his  devisee,  however 
immoral  and  illegal  it  may  be,  does  not  necessarily  render  the 
will  of  the  testator  invalid;  nor  could  that  circumstance,  in  any 
manner,  affect  the  validity  of  the  will  if  it  was  made  by  hint 
with  a  sound  and  disposing  mind  and  memory,  and  as  a  free  agent. 
1  Red.  on  Wills,  531-533;  Dean  vs.  Ne(jleij,  41  Penn.  St.,  312; 
Eckert  vs.  Flowry,  43  Pen     St.,  46. 

The  jury  are  instructed,  that  if  they  believe,  from  the  evidence, 
that  the  testator  and  the  said  Mrs.  P.,  before  and  at  the  time 
the  will  was  made,  wei'C  living  in  uulawful  cohabitatiou,  then 
the  law  will  presume  that  undue  influence  was  used  by  her  over 
the  deceased  in  the  making  of  the  will  in  question,  and  the  bur- 
den of  proof  is  upon  her  to  show  that  no  such  undue  influence 
was  used.  Leighton  vs.  Orr,  44  Iowa,  670;  1  Red.  on  Wills, 
531-533. 

Groundless  Fears. — If  the  jury  believe,  from  the  evidence  in  this 
case,  that  the  testator,  A.  B.,  at  the  time  of  the  making  of  the 
will  in  question,  had  attained  extreme  old  age,  that  his  nervous 
system  had  become  more  than  ordinarily  sensitive,  and  that  he 


448  INSTRUCTIONS 

luul  beeoine  timid  and  fcarrnl  and  that  he  was  in  constant  dread 
of  injury  from  the  said  E.  J>. ;  then,  ahhou<^h  the  jury  may  be- 
lieve, from  the  evidence,  that  no  real  cause  existed  for  the  said 
testator  to  be  ap[)rehensive  of  evil,  or  to  fear  injui-y  from  the 
said  E.  B.,  and  that  such  apprehensions  and  fear  pi-oceeded  from 
a  morbid  delusion  of  the  testator;  still,  if  the  jury  believe,  from 
the  evidence,  that  said  will  was  the  result  or  offspring  of  such 
delusion,  and  does  not  ex})ress  the  real  wishes  and  intentions  of 
the  testator,  then  the  jury  should  find  that  the  said  paper  is  not 
the  will  of  the  said  A.  1>. 

If  the  jury  believe,  from  the  evidence  in  this  case,  that  the  said 
A.  l>.,at  the  time  of  the  executing  of  the  said  paper,  offered  in 
evidence  as  his  last  will  and  testament,  was  greatly  advanced  in 
age,  ill  feeble  health,  and  laboring  under  the  fear  of  bodily  hurt 
{or  imprisonment)  at  the  hands  of  the  said  E.  B.,  and  that  the 
said  paper  was  the  result  or  offspring  of  such  fears,  and  was  not 
the  result  of  his  own  free  will,  then  the  jury  should  find  that  the 
said  pa})er  is  not  the  will  of  the  said  A.  B. 

rrovisions  of  the  Will  May  be  CoiisidevHl. — That  in  dctcnnining 
the  (piestion  of  the  validity  of  this  will  you  have  the  riii'ht.  and 
it  is  your  duty,  to  take  into  consideration  the  })rovisions  of  the 
will  itself,  in  connection  with  all  the  other  evidence  in  the  case 
bearing  upon  the  (piestion,  whether  the  said  A.  B.  was  coerced 
bv  threats,  or  fear  of  bodily  harm  into  making  the  will  in  (pies- 
tion, or  whether  he,  in  his  lifetime,  of  his  own  free  will  and 
volition,  made  and  executed  the  said  will  so  that  it  expresses  his 
own  wishes  and  intention. 


/ 


IN    CIVIL    ACTIONS.  4-19 


WORK  AND  LABOR. 

Implied  Contract. — The  court  instructs  the  jury,  that  when  a 
contract  for  work  and  hibor  is  entered  into,  and  the  terms  agreed 
upon  by  the  parties,  with  the  understanding  that  it  shall  be  re- 
duced to  writing,  and  one  of  the  parties  to  the  agreement,  enters 
upon  the  performance  of  it,  without  objection  from  the  other 
party,  the  contract  in  all  its  terms  will  be  as  binding  as  if  it  had 
been  reduced  to  writing.     Miller  vs.  McMannw,  57  111.,  126, 

Promise  to  Pay  Implied,  Wlien. — While  one  person  cannot  make 
another  his  debtor,  without  the  consent  of  the  latter,  or  recover 
for  services  rendered  for  another,  without  a  request  expressed  or 
implied,  yet,  if  one  stands  by  and  sees  another  doing  work  for 
him,  beneficial  in  its  nature,  and  overlooks  it  as  it  progresses, 
and  does  not  interfere  to  prevent  or  forbid  it,  but  appropriates 
such  labor  to  his  own  use,  then  in  the  absence  of  a  special  con- 
tract, a  recpiest  will  be  implied,  and  the  person  for  whom  the 
work  has  been  done  will  be  liable  to  pay  for  the  work  what  the 
same  was  reasonably  worth,  unless  it  expressly  appears,  from  the 
evidence,  that  it  was  done  as  a  gift  or  gratuity,  1  Pars,  on 
Cont.,  445 ;  De  Wolfw?,.  City  of  Chicago,  26  111.^,  446 ;  Alleti  vs. 
Richmond,  etc.,  41  Mo.,  302. 

The  court  instructs  the  jury,  that  when  one  person  labors  for 
another  with  his  knowledge  and  consent,  and  the  latter  volnn-  v 
tarily  takes  the  benefit  of  such  labor,  then  the  law  will  presume,  • 
that  the  laborer  is  to  be  paid  for  his  labor,  unless  the  contrary 
is  shown  by  the  evidence,  and  if  no  special  contract  is  proved, 
fixing  the  price,  then  the  laborer  is  entitled  to  have  what  his  serv- 
ices are  reasonably  worth.  Trustees  of  Farmingtoii,  etc.,  vs. 
Allen,  14  Mass.,  172. 

That  work  and  labor,  if  done  at  the  request  of  the  promisor, 
are  a  good  consideration  for  a  promise  to  pay  for  the  same;  and 
if  the  evidence  shows,  that  work  and  labor  have  been  done  and 
performed  for  another,  with  his  knowledge  and  consent,  or  if  he 
has  voluntarily  accepted  and  received  the  benefit  resulting  from 

29 


4-50  INSTRUCTIONS 

piu-li  work  and  labor,  then,  unless  there  is  evidence  to  the  con- 
trary, a  request  to  perlorni  it  may  he  inferred  from  these  facts. 
That  when  work  and  labor  are  done  and  performed  for  the 
benefit  of  another,  with  his  knowledge  and  consent,  and  he  re- 
ceives the  benefit  arising  therefrom,  then  the  law  will  presume  a 
promise  on  his  part  to  pay  for  the  same;  unless  it  appears,  from 
all  the  evidence  in  the  case,  that  such  work  and  labor  were  done 
under  a  special  contract,  or  as  a  gratuity  or  a  gift. 

Where  no  Price  is  Fixed. — If  the  jury  believe,  from  the  evidence, 

that  the  plaintiff  performed  labor  and  services  for  the  defend- 
ant at  his  request,  and  that  no  price  was  fixed  or  agreed  upon, 
then  the  law  will  imply  a  promise  from  the  defendant,  to  pay 
the  plaintiff,  for  such  work  and  labor,  what  the  same  are  reason- 
ably worth. 

Professional  Services,  Price  Implied. — If  the  jury  believe,  from  the 
evidence,  that  the  plaintiff  rendered  the  professional  services  to 
defendant,  or  to  his  family,  at  his  request,  as  claimed  by  the 
plaintiff,  then  the  plaintiff  is  entitled  to  recover  what  the  jury 
mav  believe,  from  the  evidence,  such  services  were  reasonaldy 
worth,  according  to  the  usual  charges  of  the  {medical)  profession 
in  the  vicinity  where  the  plaintiff  lives,  if  the  same  is  shown  by 
the  evidence,  after  deducting  what  payments,  if  any,  the  jury 
may  believe,  from  the  evidence,  have  been  made  therefor. 

Warranty  of  Skill  and  Care  Implied. — If  the  jury  believe,  from  the 
evidence,  that  the  defendant  employed  the  plaintiff  to  thresh 
his  grain  at  an  agreed  pi-ice,  then  the  plaintiff  was  bound  in  hiw 
to  d(^  the  Avork  in  a  workmanlike  numner.  And  should  the  jury 
further  believe,  from  the  evidence,  that  the  plaintiff,  through 
neo-liirence,  want  of  care  or  skill,  performed  the  work  in  a  waste- 
ful,  and  sh^venly,  and  unwoi-kmanlike  manner,  and  that  the  de- 
fendant was  thereby  damaged  in  an  amount  equal  to,  or  greater 
than,  the  sum  claimed  for  the  threshing,  then  the  jury  should 
find  for  the  defendant. 

If  the  jury  believe,  from  the  evidence,  that  the  plaintiffs  were 
the  owners  of,  or  in  possession  of,  a  threshing  machine,  wliii-h 
they  were  using  about  the  country  for  hire,  and  that  the  defend- 


IN    CIVIL    ACTIONS.  451 

ant  employed  them  to  thresh  his  grain,  at  an  agreed  price,  and 
that  the  plaintiffs  knowingly  undertook  and  performed  su(;h 
threshing  with  a  machine  defective  and  out  of  repair,  and  that 
the  defendant  was  thereby  damaged,  tlien  the  defendant  has  the 
right  to  offset  the  amount  of  such  damages  against  the  plaintiffs' 
claim  for  threshing.      Garfield  vs.  Ilnls^  54  111.,  427. 

That  when  a  jierson  engages  to  work  for  another,  he  im- 
pliedly contracts  tliat  he  has  a  reasonable  amount  of  skill  for 
the  employment,  and  that  he  will  use  it,  as  well  as  reasonable 
care  and  diligence;  and  a  failure  to  do  so,  to  the  injury  of  his 
emploA^er,  will  prevent  him  from  receiving  the  full  contract 
price.  The  employer  may  recoup  or  set-off  against  the  contract 
price  the  damages  he  may  sustain  for  want  of  reasonable  skill, 
or  the  observance  of  reasonable  care  and  diligence  in  the  per- 
formance of  the  work,  if  the  same  are  proved  by  the  evidence. 
2  Pars,  on  Cont.,  54;  Parker  vs.  Piatt,  74  111.,  430. 

Tliat  when  a  person  holds  himself  out  to  the  public,  or  to 
those  hiring  him,  as  a  person  having  the  requisite  experience 
and  skill  to  23erform  any  work  or  service  requiring  special 
knowledge  or  skill,  lie  impliedly  warrants  that  he  possesses  such 
knowledge  as  will  enable  him  to  do  the  work  and  perform  the 
service,  in  a  workmanlike  and  in  an  ordinarily  skillful  manner. 
If  the  jury  believe,  from  the  evidence,  that  the  plaintiff  repre- 
sented to  the  defendant  that  he  was  experienced  and  skilled  in 
the  business  of  {making  cheese),  and  that  he  was  employed  by 
the  defendants  in  that  business,  then  there  was  an  implied  war- 
ranty on  his  part,  that  his  work  should  be  done  in  an  orxiinarily 
good  and  workmanlike  manner;  and  if  the  jury  further  believe, 
from  the  evidence,  that  the  plaintiff  was  not  skilled  or  experi- 
enced in  said  business,  and  did  not  do  his  work  in  an  ordinarily 
good  and  workmanlike  manner,  then  the  defendant  had  a  i-ight 
to  discharge  him  from  such  employment. 

If  the  jury  believe,  from  the  evidence,  that  some  time  on  or 
about,  etc.,  the  defendant  employed  the  plaintiff  to  manufacture 
{cheese)  for  him  during  the  then  succeeding  summer,  and  that 
he  commenced  to  work  under  that  contract,  and  that  he  did  not 
do  his  work  in  an  ordinarily  good,  workmanlike  and  skillful 
manner,  and  that  tlie  defendant  was  therebv  damaged  to  the 


452  INSTRUCTIONS 

extent  of  the  v:ilue  of  such  services,  then  the  ])hilntii"f  is  not  en- 
titled to  recover  for  any  }>:irt  of  such  labor;  provided,- the  jury 
further  believe,  from  the  evidence,  that  the  defendant  discharged 
the  plaintiff  within  a  reasonable  time  after  discovering  the  nuui- 
ner  in  which  such  work  was  done. 

If  the  jury  believe,  from  the  evidence,  that  the  plaintiff  was 
employed  by  defendant  to  superintend  {the  manufacture  of 
cheese)  for  him,  and  that  he  worked  for  the  defendant  at  that 
business,  for  a  time,  still,  if  the  jury  further  believe,  from  the 
evidence,  that  his  work  was  not  done  in  an  ordiiuirily  skillful 
and  workmanlike  manner,  and  that  the  defendant  was  thereby 
damaged,  and  that  during  tlie  progress  of  the  work  the  defend- 
ant did  not,  and  by  the  exercise  of  reasonable  care  in  that  behalf 
could  not,  know  of  the  defective  manner  in  which  said  M'ork  was 
done,  then  the  jury  should  set  off  the  amount  of  such  damage 
an-ainst  the  value  of  the  work  so  done  by  the  plaintiff. 

Ordmary  Skill  Defined. — The  jury  are  instructed,  that  what  is 
meant  by  ordinary  skill,  in  these  instructions,  means  that  degree 
of  skill  which  men  engaged  in  that  particular  art  or  business 
usually  employ;  not  that  which  belongs  to  a  few  men  oidy  of 
extraordinary  endowment  and  capacities,  but  such  as  is  gener- 
ally possessed  by  men  engaged  in  the  same  business.  Wauyli  vs. 
Shuiik,  20  Penn.  St.,  VM). 

Acceptance  of  Work. — If  the  jury  believe,  from  the  evidence, 
that  the  defendant  inspected  the  work  in  (pujstion,  and  knew  its 
character  and  quality,  and,  with  such  knowledge,  accepted  the 
work  done  and  materials  furnished  by  the  plaintiff  as  in  com- 
pliance with  and  a  full  performance  of  the  contract  on  plaintiff's 
part,  then  the  j^lahitiff  is  entitled  to  recover  whatever,  if  any- 
tliing,  the  jury  shall  find,  from  the  evidence,  is  unpaid  upon  the 
contract  i:)rice.     Strawn  vs.  Cogswell^  28  111.,  457. 

The  jury  arc  instructed,  that  no  particular  words  or  form  is 
necessary  to  amount  to  an  acceptance  of  work  done  or  nuiterial 
furnished.  Such  acceptance  may  be  by  words  or  acts,  if  they 
are  such  as  show  that  tlie  party  knew  the  character  and  quality 
of  the  work  and  material,  and  was  satisfied  therewith. 


IN    CIVIL    ACTIONS.  400 

Usual  troing  Wages  Implied,  When. — That  when  a  person  employs 
a  person  to  labor  for  hhn,  without  any  contract  as  to  price,  and, 
with  knowledge  of  all  the  facts,  accepts  the  services  without 
complaint,  he  will  be  presumed  to  have  contracted  to  pay  at  the 
usual  and  going  price  for  such  services;  and  the  fact,  if  proven, 
that  the  servant  did  not  perform  his  work  well,  will  not  excuse 
the  employer  from  paying  such  price.  If  he  desires  to  relieve 
himself  from  such  liability,  the  employer  ought  to  discharge  the 
servant. 

Not  Bound  by  Acceptance,  When. — The  court  instructs  the  jury, 
that  when  a  party  accepts  work  done  for  liim,  or  material  fur- 
nished, he  does  not  thereby  waive  objections  to  any  latent 
defects  that  may  be  in  the  work  or  in  the  materials,  and  which, 
at  the  time  of  acceptance,  are  not  open  to  inspection  and  are 
not  known  to  him.  Korf  vs.  Lull.,  TO  111.,  420;  Garfield  vs. 
Huls,  54  Ills.,  427. 

Though  the  jury  may  believe,  from  the  evidence,  that  the 
plaintiff  performed  the  work  in  question,  and  that  the  defendant 
saw  the  work,  from  time  to  time,  as  it  was  being  done,  and  made 
no  complaint  in  reference  thereto,  but  accepted  the  work  a> 
done;  still,  if  the  jury  further  believe,  from  the  evidence,  that 
the  defendant  was  not  a  judge  of  such  wo-rk,  or  that  the  alleged 
defects,  if  they  existed,  could  not  have  been  seen  by  him, 
by  reasonable  diligence  on  his  part,  and  were  not  seen  by  him, 
then  he  would  not  be  estopped  from  showing  the  defective  char- 
acter of  the  work,  if  such  defects  exist;  and  if  the  jury  further 
believe,  from  the  evidence,  that  the  work  was  not  done  in  a  good 
and  workmanlike  manner,  by  reason  of  the  defective  machinery, 
or  of  the  careless  manner  of  working  the  same,  and  that  the 
defendant  ^^as  damaged  thereby,  then  the  jury  may  deduct  the 
amount  of  such  damage  from  the  price  of  the  work,  as  found 
by  <>he  jury  under  the  evidence. 

ENTIRE    CONTKACT. 

Fulfillment  Prevented  by  Defendant. — If  the  jury  believe,  from 
the  evidence,  that  the  plaintiff  has  furnished  the  material  and 
completed  the  building,  mentioned  in  the  contract,  in  a  good 


454  INSTKUCTIOXS 

luid  workmanlike  manner,  then,  altli(^ui;-h  the  jni-y  may  furtlior 
believe  that  the  same  was  not  conipleted  within  the  time  limited 
in  the  contract  in  that  behalf;  still,  if  the  jury  further  believe, 
from  the  evidence,  that  the  delay  complained  of  was  caused  by 
the  defendant  himself,  and  witlujut  fault  <»n  the  part  of  the 
plaintiff,  then  the  plaintiff  is  entitled  to  recover  the  balance,  if 
any,  unpaid  upon  the  contract  price,  with  (.yv>)  per  cent,  interest 
thereon,  from  the  time  the  same  was  payable  by  the  terms  of 
the  contract.     Strawn  vs.  Cogsioell,  28  111.,  457. 

Although  the  jury  may  believe,  from  the  evidence,  that  during 
the  time  the  plaintiff  was  in  the  employ  of  defendant  he  did  not 
turn  out  good  work;  still,  if  the  jury  further  believe,  from  the 
evidence,  that  plaintiff's  failure  to  turn  out  good  work  was  owing 
to  no  fault  of  his,  but  was  owing  to  defendant's  neglect  to  fur- 
nish proper  tools,  stock  or  machinery,  after  notice  by  plaintiff  to 
furnish  the  same,  if  such  notice  has  been  proved,  then  such 
failure  to  turn  out  good  work  would  not  alone  justify  defendant 
in  discharo-ing  the  plaintiff,  nor  affect  the  plaintiff's  right  to 
recover  in  this  suit;  provided,  the  jury  find  that  defendant  did 
dischar<Te  the  plaintiff  for  such  reason  before  the  expiration  of 
the  time  for  which  he  was  hired,  and  that  plaintiff' has  sustained 
damage  tliciel)y. 

Substantial  PerJoniiaiiee. — The  rule  of  law  is,  that  when  a  job 
of  work  is  actually  and  substantially  performed,  though  not  in 
exact  conformity  with  the  contract  in  innnaterial  particulars,  or 
with  variations,  assented  to  by  the  employer,  or  when  the  em- 
ployer accepts  the  work  as  and  for  a  completed  performance  of 
the  contract,  then  the  woi-kman  may  recover  for  his  work  and 
labor  what  the  same  are  reasonably  worth.  White  vs.  Hewitt,  1 
E.  D.  Smith,  395;  Dermott  vs.  Jo7ies,  23  How.,  220;  Dufro  vs. 
Walter,  31  Mo.,  516. 

The  law  is,  that  when  a  party  makes  a  special  agreement  to 
do  certain  work  in  a  particular  manner,  within  a  lixcd  time,  and 
he  fails  to  do  it  in  the  manner  or  within  the  time  agreed,  yet, 
if  he  acts  in  good  faith,  and  the  other  party  receives  any  benefit 
from  the  work  which  is  done,  the  law  implies  a  promise  by  him 
to  pay  such  sum  therefor  as  the  benelit  which  he  receives  is 


IN    CIVIL    ACTIONS.  455 

reasonably  worth  to  him.     Sno^o  \\i.Ware,  13  Met.,  42;  Vcazie 
vs.  Bangor,  51  Me.,  509;  Blood  vs.  Enos,  12  Vt.,  625.       * 

Entii-e  Contract— Leaving  Without  Good  Cause. — The  court  instructs 
the  jury,  that  where  one  is  hired  for  a  definite  time  and  leaves 
his  employer  against  his  employer's  consent,  and  without  his 
fault,  before  such  time  has  expired,  he  can  recover  nothing  for 
the  work  he  has  done;  and  this  rule  holds  as  well  where  the 
wages  are  computed  by  the  month,  or  week,  as  where  they  ai-e 
computed  for  a  gross  sum  for  the  whole  time.  The  contract  in 
such  cases  is  entire,  and  the  performance  of  the  whole  service 
is  a  condition  precedent  to  the  laborer's  right  of  recovery.  2 
Pars,  on  Cont.,  36 ;  Miller  vs.  Goddard,  34  Me.,  102 ;  Reab  vs. 
Moor,  19  Johns,  337;  Wehsterv^.  Wade,  19  Cal.,  291. 

The  court  instructs  the  jury,  that  a  contract  to  work  for  a  given 
number  of  months,  at  a  fixed  price  per  month,  is  an  entire  con- 
tract for  the  wliole  number  of  months  agreed  upon,  and  when  a 
person  agi-ees  to  work  for  another  for  a  given  number  of  months, 
and  to  perform  such  services  as  are  incident  to  his  employment, 
at  a  fixed  price  per  month,  if  he  quits  such  service  before  the 
expiration  of  the  number  of  months  agreed  upon,  without  a 
good  and  sufficient  cause,  and  without  the  consent  of  his  em- 
ployei",  he  cannot  recover  for  the  work  wliich  he  has  already 
performed.  Hensell  vs.  Errivkson,  28  111.,  257;  2  Pars,  ou 
Cont.,  36. 

The  court  instructs  the  jury,  that  where  a  party  agrees  to 
labor  for  a  year  for  a  certain  sum,  he  must  labor  for  that  time  to 
be  entitled  to  any  compensation,  unless  he  leaves  with  the  con- 
sent of  his  employer,  or  the  treatment  and  conduct  of  the  em- 
ployer towards  him  is  such  as  to  reasonably  justify  him  in  leav- 
ing. If  he  quits  before  the  expiration  of  the  time  for  which 
he  agreed  to  labor,  without  any  sufficient  cause,  or  for  any  cause 
which  he  has  himself  wrongfully  provoked,  he  cannot  recover  for 
the  time  he  has  labored. 

Payment  a  Condition  Precedent. — If  the  jury  believe,  from  the 
evidence,  that  the  services  claimed  and  sued  for  in  this  suit, 
were  rendered  under  a  contract  to  work  for  a  longer  time  than 
the  plaintiff  did  work,  and  that  the  defendant  was  to  make 


450  INSTIirCTIONS 

monthly  puyiiieiits  for  such  services,  by  tlio  terms  of  the  same 
<-()iitr;ict,  aiul  that  he  failed  t(»  make  such  payments  as  stipuhited, 
then,  upon  su(;h  failure,  the  plaintiif  had  a  rii^ht  to  abandon  the 
service  and  to  collect  of  the  defendant  what  the  services  ren- 
dered woidd  anu)unt  to  at  the  stipulated  price.  Folliott  vs. 
Hunt,  21  111.,  O.U. 

Burden  of  I'roof. — If  the  jury  believe,  from  the  evidence,  that 
the  plaintiif  made  a  contract  with  defendant  to  work  for  him 
{eight)  months  from,  etc.  (or  to  work  from  that  time  until  defend- 
ant's corn  should  be  o:athered  in  the  fall),  at  an  agreed  j)rice  per 
month,  and  if  the  jui-y  furtlier  believe,  from  the  evidence,  that 
before  the  end  of  the  term  so  a<i;reed  upon  the  plaintiff  left  the 
employ  of  the  defendant,  then  the  burden  of  proof  is  upon  the 
plaintiff  to  show,  by  a  preponderance  of  evidence,  that  he  left 
with  defendant's  consent,  or  was  discharo-ed  by  him,  or  that  the 
])laintiff  had  just  and  reasoiud)le  cause  for  leaving  when  he  did, 
otherwise  he  can  recover  nothing  for  the  work  done  under  such 
contract. 

Pretext  for  Leaving-. — If  the  jury  believe,  from  the  evidence, 
that  the  j^laintiff  agreed  to  work  for  the  defendant,  at  a  stipu- 
lated price  for  the  period  of  {one  yeai'),  if  they  could  agree,  then, 
in  order  to  justify  the  plaintiff  in  leaving  defendant  s  service 
before  the  expiration  oi'  that  period,  if  it  appears  from  the  evi- 
dence, that  he  did  so  leave,  there  must  have  been  some  good 
reason  for  disagreeing  with,  and  becoming  dissatisfied  with,  the 
defendant.  The  plaintiff  would  have  no  right  to  nuxnufacture  a 
pretext  for  disagi'ceing  with  tlu;  defendant,  and  then  take  advan- 
tage of  that.  AVhethei-  such  good  reasons  did  exist  in  this  case 
is  a  question  of  fact  to  be  determined  by  the  jury  from  the 
evidence. 

Must  \w  Substaiitlal  ( auso  for  Lcaviufr,  Etc. — The  court  further 
instructs  the  jury,  that  when  a  person  hires  out  to  work  for 
another  for  a  certain  fixed  time,  he  has  no  right  on  account  of 
any  frivolous  or  fanciful  disagrecir.ent  witli  his  employer,  or  his 
employer's  family,  to  Krcak  such  contract  ami  leave  his  em- 
ployer's service.     In  or(lcr  to  justify  such  leaving  tlu'i'e  must  1)C 


IN    CIVIL    ACTIONS, 


45 


some  good  and  substantial  cause,  wliicli  the  jury  can  say,  from 
the  evidence,  would  justify  a  reasonable  person  in  leaving  such 
employment,  or  else  the  employer  must  in  some  manner  prevent 
or  waive  a  further  performance  of  the  contract. 

Note.— The  doctrine  announced  in  the  foregoing  instructions  regard- 
ing the  right  of  recovery  of  an  employe,  leaving  his  employer's  service 
without  good  cause,  before  the  expiration  of  the  time  for  which  he  was  hired, 
is  not  acknowledged  in  some  states.  It  is  held,  in  these  states,  that,  in 
such  eases,  if  the  employer  has  derived  any  benefit  from  the  labor  per- 
formed, over  and  above  the  damage  resulting  to  him  from  the  breach  of  the 
contract,  the  law,  thereupon,  raises  an  implied  promise  to  pay  to  the  extent 
of  the  reasonable  worth  of  the  excess.  In  such  cases  the  next  five  instruc- 
tions will  be  proper 

Entire  Contract— Rule  of  Damages. — The  law  is,  that  when  a  per- 
son agrees  to  work  for  another  for  a  fixed  and  definite  period ^ 
and  he  performs  labor  under  such  contract  which  is  of  benefit 
or  value  to  the  employer,  and  then  leaves  before  the  expirajtion 
of  the  term  for  which  he  was  hired,  without  his  employer's  con- 
sent, and  without  reasonable  cause,  although  he  cannot  enforce 
payment,  according  to  the  contract,  he  is  entitled  to  recover 
what  his  services  are  reasonably  worth  over  and  above  the  dam- 
ages sustained  by  the  employer  from  the  breach  of  the  contract 
by  the  lal)orer,  less  any  x^ayments  which  may  have  been  made 
on  the  contract.  2  Pars,  on  Cont.,  38;  Pixler  \s.  Nichols,  8 
la.,  106;  Britton  vs.  Turner,  6  N.  II.,  481;  Fenton  vs.  Clarke, 
11  Yt,  560;  Ralston  vs.  Kohl,  30  Ohio  St.,  92;  EaHn  vs. 
Harrison,  4  McCord,  249. 

If  the  jury  believe,  from  the  evidence,  that  the  plaintiff  per- 
formed any  work  for  defendant,  as  claimed,  and  that  the  services 
were  of  any  benefit  to  the  defendant,  and  that  the  same  have 
not  been  fully  paid  for,  then,  although  the  jury  may  further 
find  that  the  work  Avas  done  under  an  agreement  to  work  for  a 
definite  time,  at  a  given  price,  and  that  plaintiff  left  such  em- 
ployment before  the  expiration  of  that  time,  without  defendant's 
consent,  and  without  any  good  or  reasonable  cause  therefor, 
still,  the  plaintiff  is  entitled  to  receive  pay  for  such  services 
what  they  were  reasonably  worth;  unless  the  jury  further  be- 
lieve, from  the  evidence,  that  the  defendant  sustained  damage 
in  consequence  of  plaintiff's  so  leaving,  in  which  case  plaintiff' 


45S  INSTRUCTIONS 

Avill  1)0  entitled  to  reeover  what  siu-li  serviees  were  reasonably 
worth  over  and  above  such  daniai^es,  it"  anything,  less  the  l>ay- 
ments  whieh  have  been  made  thereon,  if  any  are  shown  l)y  the 
evidence. 

If  the  jury  l)elieve,  from  the  evidence,  that  plaintiff  per- 
formed lal)or  fur  the  defendant,  as  claimed  by  him,  and  that 
such  labor  was  piM'formed  under  a  contract  to  work  for  defend- 
ant for  a  fixed  and  detiuite  period  of  time,  and  that  such  services 
were  of  benefit  or  value  to  the  defendant,  and  have  not  been 
paid  for  in  full;  and,  further,  that  defendant  left  defendant's 
employ  before  the  expiration  of  said  period  of  time  without  any 
good  or  reasonable  cause  therefor,  then  the  })]aintiif  is  entilU'd 
to  recover  \vhat  such  services  were  i-ea'sonably  woith,  if  anything^ 
over  and  above  the  damages  sustained  by  the  defendant,  if  any 
are  shown  by  the  evidence  to  have  been  sustained  l)y  ]rmi,on  ac- 
count of  the  plaintiff's  so  leaving,  less  any  payments  which  have 
been  made  to  the  plaintiff  on  account  of  such  work,  if  any  are 
shown  by  the  evidence. 

The  court  instructs  tlie  jury,  as  a  matter  of  law,  that  if  one 
2">ers()n  agrees  to  work  for  another  for  a  tixetl  and  definite  period 
of  time,  at  an  agreed  price,  to  be  paid  at  the  expiration  of  the 
time,  or  from  time  to  time,  as  the  work  progresses,  and  the  la- 
borer leaves  the  service  of  his  employer  before  the  expiration  of 
the  full  time  of  his  employment,  without  some  good  and  reason- 
able cause  therefor,  aiul  against  the  will  of  the  employer,  then 
he  will  (jnly  be  entitled  to  receive  for  the  work  actually  done 
what  the  same  was  reasonal)ly  worth,  over  and  above  the  dam- 
ao-es,  if  any,  sustained  by  the  employer,  in  consequence  of  the 
laborer  leaving  before  the  time  fixed  in  that  behalf. 

If  the  jury  believe,  from  tiie  evidence,  that  some  time  on  or 
about,  etc.,  the  plaintiff  and  defendant  entered  into  a  contract 
by  which  the  plaintiff  agreed  to  work  for  the  defendant  for  the 

period  of  montlis  from,  etc.,  at  the  agriMMl    price  of  s 

per  month,  to  be  })aiil  montldy,  and  that  the  work  su(ul  for  in 
this  case  was  done  under  that  contract;  and  if  the  jury  further 
believe,  from  the  evidence,  that  without  any  good  or  reasonable 
cause  therefor  the  ])laintiff  left  the  defendant's  (Muploy  Ixd'ore 
the  expiration  of   the   time  fixed  in  the  contract,  and  without 


IN    CIVIL    ACTIONS. 


459 


the  consent  of  defendant,  and  that  the  defendant  was  thereby 
damaged,  then  the  plaintiff  can  onlj  recover  the  reasonable  value 
of  his  services  over  and  above  such  damage;  and  if  the  jury  be- 
lieve, from  the  evidence,  that  such  services  were  reasonably  worth 
no  more  than  the  amount  of  such  damage,  then  the  jury  should 
tind  for  the  defendant. 

Must  Demean  Himself  Respectfully. — The  court  instructs  the  jury, 
that  when  a  person  is  employed  by  another  he  must,  in  his  inter- 
course with  his  employer  and  those  having  control  of  his  busi- 
ness, and  with  those  doing  business  with  such  employer,  abstain 
from  all  vulgarity  and  obscenity  of  language  and  conduct,  if 
required  to  do  so,  and  must  be  respectful  and  obedient  to  the 
reasonable  commands  of  his  employer  and  those  having  control 
of  his  business.  And  a  failure  in  any  of  these  requirements 
would  be  good  ground  for  discharging  such  person  before  his 
term  of  employment  expires.  Hamlin  et  at.  vs.  liace,  78  111., 
4^2. 

Leaving  on  Account  of  Sickness. — The  jui-y  are  instructed,  tliat 
even  if  they  believe,  from  the  evidence,  that  the  work  sued  for 
in  this  case  was  done  under  a  special  contract,  by  which  the 
plaintiff  agreed  to  work  for  a  fixed  and  si^ecified  time,  and  that 
plaintiff  left  defendant's  employ  before  the  expiration  of  that 
time;  still,  if  the  jury  farther  believe,  from  the  evidence,  that 
plaintiff  was  compelled  to  so  quit  work  on  account  of  sickness 
(or  on  account  of  sore  eyes),  then  he  would  be  entitled  to  recover 
for  the  time  he  actually  did  work  at  tlie  agreed  price,  if  the  jury 
find,  from  the  evidence,  that  there  was  an  agreed  price  between 
the  parties;  and  if  the  jury  find  there  was  no  agreed  price,  then 
what  such  labor  was  reasonably  worth.  Htibhard  vs.  Belden, 
27  Yt.,  645;   Gree^i  vs.  Gilbert,  21  Wis.,  395. 

Discharged  or  Compelled  to  Leave,  Etc. — The  court  instructs  the 
jury,  that  while  the  law  is  that  a  person  who  engages  to  labor 
for  another  for  a  specified  period,  at  a  given  price,  has  no  right 
to  recover  for  his  work,  etc.,  unless  he  performs  his  entire  contract, 
or  is  excused  therefrom  by  the  employer,  or  is  in  some  manner 
justified  in  quitting  before  the  expiration  of  the  time;  yet  if 


400  INSTUrCTIONS 

he  is  prevented  from  perfoi-iniiiij;  his  contract  hy  tlie  employer, 
or  is  discharged  from  his  employment,  or  is,  fi'om  ill-usage^ 
compelled  to  a])andon  the  service,  he  may  then  recover  what  his 
labor,  actually  performed,  Avill  amount  to  at  the  contract  price. 
Ariffel  vs.  llanna,  22  111.,  42!t. 

Discliarfrc  Without  Good  Cause,  Measure  of  Damages. — Tliat  when  one 
person  hires  another  to  work  for  him  for  a  dctinitc,  lixcil  time, 
at  an  agreed  price  for  the  whole  time,  or  at  so  much  })er  month, 
the  employer  cannot  legally  discharge  the  workman  with(jut  his 
consent,  or  without  some  good  and  reasonable  cause,  until  the 
expiration  of  such  time;  and  if  he  does  do  so  he  will  still  be 
liable  to  the  \vorkmau  for  the  full  amount  of  his  wages  f(jr  the 
whole  time  covered  by  the  original  agreement,  except  that  in 
case  the  workman  earns  anything,  or  by  reasonable  exertion  and 
effort  might  have  earned  something  during  the  unexpired  portion 
of  the  time,  in  which  case  the  employer  will  be  entitled  to  a 
credit  for  the  sum  so  earned,  or  that  might  have  been  earned  1)V 
the  use  of  reasonable  effort  and  diligence  directed  to  that  end. 
Foioler  vs.  Armour,  24  Ala.,  194;  Ivhuf  vs.  Steiren,  44  Pcnn. 
St.,  99;  RicJcs  vs.  Yates,  5  Ind.,  11  r>. 

If  the  jury  believe,  from  the  evidence,  that  on  or  about,  etc., 
the  defendant  employed  the  plaintiff  to  nuike  cheese  for  him 
during  the  cheese-making  season  of  A.  D.,  18 — ,  and  agreed  to 

pay  him  for  his  services  at  the  rate  of  8 per  day,  and  that 

afterwards  the  plaintiff  commenced  to  work  for  defendant  under 
said  contract,  and  that  before  the  end  of  such  season  defendant 
discharged  plaintiff  from  such  employment  without  the  fault  of 
the  plaintiff,  and  against  his  \\il!.  then  the  ])laiiitirt'  is  entitled  to 

recover  at  the  rate  of  $ per  day,  for  all  that  portion  of  the 

unexpired  term  after  said  discharge,  during  which,  the  evidence 
shows,  he  was  necessarily  unemployed  by  reason  of  such  dis- 
charge, if  the  jury  believe,  from  the  evidence,  that  he  w\as 
during  any  portion  of  said  time  necessarily  unemployed  by 
reason  of  such  discharge. 

Workman  Must  Avoid  I'nnecessary  Damaj^e. — The  (;ourt  instructs  the 
jni-y,  that  when  a  person  hire<l  to  W(jrk  for  another  for  a  fixed 
and  definite  time  is  wrongfully  discharged  by  his  employers 


IX    CIVIL    ACTIONS, 


461 


before  tlie  time  expires,  he  must  use  all  reasonable  ineaus  aud 
efforts  to  find  other  employment  during  the  unexpired  time 
covered  by  the  contract,  so  as  to  avoid  unnecessary  damage  to 
himself  by  reason  of  such  discharge.  The  object  of  the  law  in 
such  cases  is  to  pay  the  workman  for  the  labor  performed  by 
him,  and  also  to  compensate  him  for  any  damage  resulting  to 
him  from  such  discliarge,  and  which  could  not  be  avoided  by 
reasonable  effort  on  his  part. 

Services  by  a  Member  of  the  Family. — The  court  instructs  the  jnry, 
that  while  it  is  the  general  rule  of  law,  that  where  one  renders 
services  for  another,  which  are  accepted  by  the  other,  the  law 
will  imply  a  promise  to  pay  for  such  services;  yet,  if  such  serv- 
ices are  rendered  by  one  who  is  a  member  of  the  family,  receiv- 
ing support  therein  as  such,  then  no  such  implication  arises; 
nor  can  a  recovery  be  had  for  services  so  rendered,  except  upon 
evidence,  showing  a  promise  to  pay  for  the  same,  or  such  facts 
and  circumstances  as  lead  the  jury  to  believe,  from  the  evidence, 
tliat  it  was  understood  by  the  parties  that  the  services  were  to 
be  paid  for.  Thorp  vs.  Bateman^  37  Mich.,  68 ;  Smith  vs.  John- 
son^ 45  la.,  308;  Sprague  vs.  TFa^cio,  38  Vt.,  139;  Davis  vs 
Goodnow^  27  Vt.,  715. 

If  the  jury  believe,  that  during  the  time  in  question,  the 
plaintiff  was  living  in  defendant's  family  as  a  member  thereof, 
that  he  was  clothed  and  fed  by  defendant,  that  he  was  cared  for 
in  sickness  and  in  health  by  other  members  of  defendant's 
family,  and  in  all  respects  treated  as  a  meml)er  of  the  family, 
then  the  law  will  not  imply  a  promise  on  the  pai-t  of  the  defend- 
ant to  pay  for  the  services  rendered  during  that  time,  and  in 
such  case  he  should  not  recover  for  such  services;  unless  tlic  jury 
further  believe,  from  the  evidence,  that  defendant  has  ];)romised 
to  pay  for  the  same,  or  unle^^s  the  facts  and  circumstances  proved 
lead  the  jury  to  believe,  from  the  evidence,  that  there  was  an  un- 
derstanding between  the  parties  that  plaintiff  w^as  working  for 
wages. 

If  the  jury  believe,  from  the  evidence,  that  plaintiff  was  a 
member  of  defendant's  family  during  the  whole  of  the  time  for 
which  the  services  in  question  are  cliai'ged,  and  was  treated  and 
cared  for  the  same  as  the  other  members  of  his  family,  then  there 


462  ixsTiircTioNS 

is  no  implied  promise  raised  to  pay  for  any  services  he  may 
have  performed, simply  from  the  fact  that  defendant  accepted  the 
services  and  received  the  henellt  thereof. 

Stranger  a  Member  of  the  Family. — If  the  jnry  believe,  from  tlie 
evidence,  that  the  plaintiff  worked  for  defendant,  and  that  his  time 
and  labor  were  reasonably  worth  more  than  his  l)oanl  and  washing, 
then  the  plaintiff  is  entitled  to  recover  what  liis  time  and  services 
were  reasonably  w^orth,  over  and  above  what  he  has  received  or 
been  paid,  if  anything,  as  shown  by  the  evidence;  nnless  the  evi- 
dence further  shows  that  the  plaintiff  agreed  to  do  the  work  for 
his  board  and  washing,  or  that  there  was  some  other  special  con- 
tract between  the  parties  fixing  the  price  of  the  labor.  TFcV/.s 
vs.  Perkins,  43  Wis.,  160;  Sword  vs.  Keith,  '>!  Mich.,  247. 

If  the  jury  believe,  from  the  evidence,  that  the  }daiutiff  per- 
formed labor  for  the  defendant  for  which  he  has  not  been  paid, 
and  that  such  labor  and  services  were  reasonably  worth  more 
than  the  price  of  his  board  and  washing,  then,  before  the  de- 
fendant can  avail  himself  of  the  defense  that  plaintiff  agreed  to 
work  for  his  board  and  washing,  the  defendant  must  prove  the 
existence  of  such  a  contract  by  a  preponderance  of  evidence. 
And  if  the  jury  iind  tliat  the  evidence,  bearing  upon  tliis  point, 
is  in  favor  of  the  plaintiff,  or  that  it  is  eipially  balanced,  then 
the  jury  should  allow  the  plaintiff  what  his  services  were  reason- 
ai)lv  worth,  over  and  above  what  he  has  had,  as  shown  by  the 
evidence. 

Services  of  Child. — The  court  instructs  the  jury,  that,  although  a 
child  may  be  over  age,  still,  as  long  as  the  relation  of  parent  and 
child  continues  to  exist  the  same  as  before  he  became  of  age,  the 
law  raises  no  implied  promise  to  pay  for  the  services  of  the 
child.  Miller  vs.  3Iiller,  16  111.,  296;  Hart  vs.  Ifess,  41  Mo., 
441;  Wells  \^.  PerJcins,  ^Z  AVis.,  160;  Adams  vs.  Adams,  T^ 
Ind.,  50. 

If  the  jury  believe,  from  the  evidence,  that  the  plaintiff  con- 
tinued to  reside  with  his  father  after  becoming  of  age,  and  was 
treated  as  a  member  of  the  family  the  same  as  before  coming  of 
age,  then  to  entitle  him  to  recover  for  services  performed  during 
that  period  of  time,  the  jury  must  believe,  from  tlie  evidence, 


IN    CIVIL    ACTIONS.  4G3 

that  at  the  time  the  services  were  rendered,  it  was  expected  by 
both  parties  that  he  should  be  paid  for  such  services,  or  else, 
that  the  circumstances  were  such  as  to  reasonably  justify  the 
plaintiff  in  expecting  pay  for  his  services. 

If  the  jury  believe,  from  the  evidence,  that  when  the  services 
in  question  were  performed,  the  plaintiff  lived  with  his  father 
the  same  as  his  other  children  did,  and  apparently  the  same  as 
he  had  before  coming  of  age;  then,  to  entitle  him  to  recover,  it  is 
incumbent  upon  the  plaintiif  to  prove,  by  a  preponderance  of 
evidence,  an  express  hiring,  or  promise  to  pay,  or  circumstances 
from  which  such  hiring  or  promise  may  reasonably  be  inferred. 
Steel  vs.  Steel,  12  Penn.  St.,  64. 

When  Promise  may  be  Iiifen-ed. — If  the  jury  believe,  from  the  evi- 
dence, that  the  plaintiff,  after  becoming  of  age,  and  during"  the 
time  in  question,  was  treated  differently  from  the  other  children 
of  the  family,  and  did  the  wc^rk  of  a  servant,  and  was  treated  as 
such,  then  these  are  circumstances  which  the  jury  may  consider 
with  all  the  other  evidence  in  the  case,  in  determining  whether 
the  parties  expected  and  understood  that  compensation  should 
be  made  for  plaintiff's  labor  and  services. 

Emancipation  of  Minor A  father  by  agreement  with  his  minor 

child,  may  relinquish  to  the  latter  the  right  which  he  would  other- 
wise have  to  his  services,  and  may  authorize  those  who  employ 
him  to  pay  him  his  wages,  and  he  will  then  have  no  right  to  de- 
mand those  wages,  either  from  the  employer  or  from  the  child. 
Monaghan  vs.  School  Dist.,  etc.,  38  Wis.,  100. 

Minor  Can  Only  Disafrirm  Contract  After  Majority  —  (By  Statute).— 
By  the  laws  of  this  state  a  minor  is  l)ound  by  his  contracts  unless 
he  disaffirms  them  within  a  i-easonaljle  time  after  attaining  his 
majority — disaffirmance  before  majority  is  of  no  effect.  If  a 
minor  renders  personal  services  under  a  contract,  and  accepts 
payment  for  them  according  to  the  contract,  he  cannot  maintain 
an  action  by  his  next  friend  to  recover  again.  Murphy  vs.  John- 
son, 45  la.,  57. 

Gratuitons  Labor. — That  while  the  law  will  in  general  hold  a 
party  for  whom  work  has  been  performed,  with  his  knowledge 


464  INSTRUCTIONS 

aiiil  coiisoiit,  li;il)le  to  pay  for  the  same  yet,  a  party  is  under  no 
ol)ligatioii  to  pay  for  \\'(»rk  tloiie  Ky  one  who  \dhinleers  to  do  it 
without  pay,  or  as  a  gratuity;  and  the  fact  that  such  work  has 
been  henetieial  to  the  party  for  wiiom  it  was  done,  creates  no  obli- 
gation to  pay  for  it,  if,  at  the  time  it  was  being  doiu',  it  was 
understood  by  the  parties  to  be  gratuitous. 

If  the  jury  believe,  from  the  evidence,  that  the  ])hiiiitiff  made 
his  home  at  defendant's  house  during  the  time  for  which  he 
claims  pay  for  his  services,  and  that  he  did  not  at  that  time 
intend  to  charge  the  defendant  for  the  services  he  rendered,  and 
l)Oth  the  parties  regarded  the  same  as  a  donation,  or  as  an  e([uiv- 
alent  for  living  at  defendant's  house,  then  he  cannot  recover  for 
such  services  in  this  suit.  Br(>>MjJito)h  vs.  Suiaji,  .">!,)  111.,  440; 
Jfor/'is  vs.  Barnes,  35  Mo.,  412. 

That  labor  done,  and  services  rendered  by  one  person  for 
juiother,  without  the  knowledge  or  request  of  the  person  for 
whom  the  work  is  done  or  service  rendered,  no  matter  how  mer- 
itorious or  beneficial  to  the  latter,  afford  no  ground  of  action  in 
favor  of  the  person  doing  the  work,  or  rendering  the  service. 
Bartlioloraeio  vs.  Jacl'son,  20  John.,  28. 

And  in  this  case,  though  the  jury  may  believe,  from  the  evi- 
dence, that  the  plaintiff  rendered  services  which  were  of  value 
and  beneficial  to  the  defendant  in  saving  his  crops,  still,  if  the 
jury  further  believe,  from  the  evidence,  that  such  services  were 
rendered  without  the  knowledge  or  request  of  the  defendant,  and 
that  he  has  never  agreed  to  pay  for  the  same,  then  tlie  plaintiff 
cannot  recover  for  such  services. 

Ai?recd  Price  Must  Govern. — If  the  jury  believe,  fi'om  the  evi- 
dence, that  the  plaintiff  rendered  the  services  for  the  defendant, 
as  claimed  and  sued  for  in  this  case,  at  an  agreed  price,  and  that  ' 
ho  has  not  been  fully  paid  for  the  same,  then  the  jury  should 
render  a  verdict  in  favor  of  the  plaintiff  for  such  an  amount  aa 
the  services  actually  rendered  would  (uime  to  at  the  stipu- 
lated price,  less  such  an  amount  as  the  jui-y  believe,  from  the 
evidence,  has  been  paid  t hereon. 

Contract  Presumed  to  Continue,  When. — The  court  instructs  the 
jury,  that  where  a  person  enters  the  employ  of  ai.other  Uiidcr  a 


IN    CIVIL    ACTIONS.  465 

special  contract,  fixing  the  time  of  service  and  the  price  to  be 
paid  therefor,  and  he  continues  in  such  employment  after  the 
term  has  ended,  without  any  new  contract  or  agreement,  he  will 
be  considered  as  holding  under  the  original  contract,  so  far  a> 
the  price  of  his  labor  is  concerned.  G.  ds  B.  S.  3Ieh.  Co.  vs. 
Bulkley,  48  111.,  189;  Vail  vs.  N.  J.,  etc.,  Co.,  32  Barb.,  564; 
Ranch  vs.  Albright,  36  Penn.  St.,  367. 

If  the  jury  believe,  from  the  evidence,  that  there  was  no  con- 
tract between  plaintiif  and  defendant  that  plaintiff  should  work 
for  defendant  for  any  definite  j)eriod  of  time,  the  jury  should 
find  for  the  plaintiff  for  the  time  he  did  work,  if  any,  at  the 
rate  per  month  agreed  upon,  if  the  jury  find,  from  the  evidence, 
that  any  price  was  agreed  upon  between  the  parties. 

Evidence  of  Reasonable  Worth. — If  the  jury  believe,  from  the 
evidence,  that  the  plaintiff  did  the  work  in  question,  as  claimed, 
and  that  there  was  no  special  contract  as  to  the  price,  then,  in 
coming  at  the  value  of  the  services,  the  jury  should  take  into 
account  the  nature  of  his  employment,  the  kind  of  service 
required  of  him,  and  the  degree  of  care  and  attention  bestowed 
by  him  on  the  defendant's  affairs,  so  far  as  these  things  have 
been  shown  by  the  evidence,  if  they  do  so  appear. 

If,  in  this  case,  the  jury  find  for  the  plaintiff,  and  they  believe, 
from  the  evidence,  that  no  special  price  was  agreed  upon,  then 
in  arriving  at  the  value  of  the  services,  you  sliould  consider  the 
means  of  knowledge  of  such  value  possessed  by  the  several  wit- 
nesses who  have  testified  in  relation  to  such  value.  Those 
witnesses  who  helped  to  do  the  work,  if  any  such  are  shown  by 
the  proof,  all  things  being  equal,  would  generally  afford  better 
and  more  reliable  evidence  of  such  value  than  those  who  speak 
from  theory  or  general  knowledge  only,  especially  if  the  evidence 
shows  that  they  never  did  such  work  or  saw  it  done. 

Burden  of  Proof  of  Payment. — The  jury  are  instructed,  that  the 
burden  of  proof  as  to  any  payment  claimed  to  have  been  made 
to  the  plaintiff  for  services  rendered,  is  upon  the  defendant. 
And  in  case  of  a  conflict  of  testimony  as  to  such  payments,  the 
rule  of  law  is,  that  if  the  weight  of  evidence  against  the  pay- 
ments exceeds,  or  even  only  equals  the  weight  of  evidence  in 

80 


466  INSTRUCTIONS 

favor  of  their  having  been  made,  then  the  jury  shoukl  consider 
such  payments  not  proved. 

Offer  to  Compromise. — The  jury  are  instrncied,  fliat  tlie  plaintiff 
is  in  no  manner  bound  by  any  offer  that  he  may  liave  made  to 

accept   $ in   settlement  of    his   claim;   provided,  the   jury 

believe,  fi-om  the  evidence,  that  such  offer  was  made  solely  for 
the  purpose  of  bringing  about  an  amicable  settlement  with 
defendant,  or  by  way  of  comjiromise ;  nor  in  such  case  should 
such  offer  be  regarded  as  an  admission  that  no  more  than  that 
sum  was  due.     Monell  vs.  Bu/'iis,  4  Denio,  121. 

Effect  of  Pleading  Set-Off. — The  court  insti-ucts  the  jury,  that  the 
defendant  has  pleaded  in  this  case  a  plea  of  set-off,  acconn)anied 
by  a  bill  of  particulars,  in  which  he  has  charged  the  plaintiff  for 
board  and  clothes,  etc.,  during  the  entire  period  of  time  in 
question,  and  the  fact  of  j-ylcading  such  plea  and  making  such 
charges  are  circumstances  pr()2)er  to  be  taken  into  considci-atioii 
by  the  jury,  together  with  all  the  evidence  in  the  case,  in  deter- 
mining whether  or  not  it  was  understood  by  defendant  at  the 
time  that  plaintiff  was  performing  the  services  in  question  with- 
out any  expectation  of  pay  therefor. 

The  court  instructs  the  jury,  that  the  defendant  has  pleaded 
in  this  case  non-assumpsit  and  set-off;  that  by  thus  ])li'a(ling  the 
defendant  does  not  admit  the  contract  relied  upon  by  the  plain- 
tiff; an  implied  contract  as  well  as  a  special  contract  is  denied 
by  the  plea  of  non-assumpsit,  and  the  plaintiff  is  required  to 
prove  his  case,  by  a  preponderance  of  the  evidence,  before  he  is 
entitled  to  recover,  notwithstanding  the  plea  of  set-off;  and  mi- 
less  the  jury  find  the  greater  weight  of  evidence  in  favor  of  the 
plaintiff's  claim,  they  should  iind  for  the  defendant. 

One  promise  is  a  sufficient  consideration  to  suppoit  another 
promise,  and  where  a  person  does  an  act  beneficial  to  another, 
or  agrees  to  do  so,  that  forms  a  sufficient  consideration  to  sujiport 
an  agreement  to  i)ay  for  the  same. 

Written  Contract  Varied  by  Parol. — A  contract  under  seal  mav  be 
changed  by  a  subsequent  verbal  agreement  to  pay  an  additioiuil 
sum  for  the  same  work  and  materials  mentioned  in  the  ujii'ce- 


IN    CIVIL    ACTIONS.  467 

meiit.  And  in  this  case,  if  the  jnry  believe,  from  the  evidence, 
that  there  was  a  subsequent  verbal  agreement  between  the  par- 
ties, varying  the  terras  of  the  written  agreement,  and  that  the 
work  in  question  was  done  in  compliance  with  the  latter  agree- 
ment, it  will  be  binding  between  the  parties.  Cook  vs.  MurpTuj^ 
70  111.,  96. 


PAET    lY. 


Instructions  in  Criminal  Cases. 


PART  IV. 

mSTRUCTIOXS  m  CRIMmAL  CASES. 


DEGREE  OF  PROOF— WEIGHT  OF  EVIDENCE. 

Note.— The  rules  already  given  under  the  head  of  "Credibility  of  Wit- 
nesses— Weight  of  Testimony,"  apply,  in  the  main,  equally  to  civil  and 
criminal  suits.  The  following  rules,  relating  to  degree  of  proof  and  weight 
of  evidence,  apply  more  especially  to  criminal  prosecutions. 

Presuiiiptiou  of  Innocence— Degree  of  Proof. — The  court  instructs 
the  jury,  that,  in  this  case,  the  haw  raises  no  presumption  against 
the  prisoner,  but  every  presumption  of  the  law  is  in  favor  of  his 
innocence;  and,  in  order  to  convict  him  of  the  crime  alleged  in 
the  indictment,  or  of  any  lesser  crime  included  in  it,  every 
material  fact  necessary  to  constitute  such  crime  must  be  proved 
beyond  a  reasonable  doubt;  and  if  the  jury  entertain  any  rea- 
sonable doubt  upon  any  single  fact  or  element  necessary  to 
constitute  the  crime,  it  is  your  duty  to  give  the  prisoner  the 
benefit  of  such  doubt,  and  acquit  him. 

Every  Alleg:ation  Must  be  Proved. — The  court  instructs  the  jury, 
that  it  is  incumbent  upon  the  prosecution  to  prove  every  material 
allegation  of  the  indictment  as  therein  charged.  Nothing  is  to 
be  presumed  or  taken  by  implication  against  the  defendant; 
the  law  presumes  him  innocent  of  the  crime  with  which  he  is 
charged  until  he  is  proven  guilty  beyond  a  reasonable  doubt  by 
competent  evidence.  And  if  the  evidence,  in  this  case,  leaves 
upon  the  minds  of  the  jury  any  reasonable  doubt  of  defendant's 
guilt,  the  law  makes  it  your  duty  to  acquit  him. 

Prisoner  Entitled  to  Every  Reasonable  Hypothesis. — The  defendant 
is  entitled  to  every  presumption  of  innocence  compatible  with 
the  evidence  in  the  case,  and,  if  it  is  possible  to  account  for  the 


472  INSTKrcTIOXS 

death  of  the  deceased  upon  any  re:isonal»le  hypothesis  other  than 
tliat  of  tJie  i>;uih  of  tlie  defcnthmt,  then  it  is  your  (hity  to  so 
account  for  it,  and  find  the  defendant  not  <:;uilty. 

The  court  instructs  the  jury,  that  it  is  not  enouy-h  that  you 
firndy  believe,  from  tlie  evidence,  that  it  is  more  pi'obable  that 
the  defendant  kiHed  the  deceased,  as  charged  in  the  indictment, 
than  it  is  that  lie  died  from  some  other  cause,  but  you  must  be 
satisfied,  beyond  a  reasonable  doubt,  from  all  the  evidence,  that 
he  is  guilty  as  charged  in  the  indictment,  or  else  it  is  your  sworn 
duty  to  find  him  not  guilty. 

The  court  instructs  the  Juiy,  that  if  tliere  is  any  other  reasona- 
ble hypothesis  arising  out  of  the  evidence  given  in  this  case, 
except  the  one  that  the  defendant  unlawfully  killed  the  de- 
ceased, then  the  defendant  is  entitled  to  the  benefit  of  such 
hypothesis,  and  he  ought  to  be  acquitted. 

Probability  not  Siifllcient. — The  court  instructs  the  jury,  that  in 
ci-iminal  cases,  even  whei-e  the  eviden(;e  is  so  strong  that  it 
demonstrates  the  prol)a])ility  of  the  guilt  of  the  party  accused, 
still,  if  it  fails  to  establish,  beyond  a  i-easonable  doubt,  the  guilt 
of  the  defendants,  or  of  one  or  more  of  them,  in  manner  and 
form  as  charged  in  the  indictment,  then  it  is  the  duty  of  the 
jury  to  acquit  any  defendant  or  defendants  as  to  whose  guilt 
they  entertain  such  reasonable  doubt. 

The  jury  are  instructed,  that  mere  j)rol)abilities  are  not  suflS- 
cient  to  warrant  a  conviction;  nor  is  it  suilicient  that  tlie  greater 
weight  or  preponderance  of  the  evidence  supports  the  allega- 
tions of  the  indictment;  nor  is  it  sufficient,  that  upon  the  doc- 
trine of  chances,  it  is  more  probable  that  the  defendant  is  guilty. 
To  warrant  a  conviction  of  the  defendant,  he  must  be  proved  to 
be  guilty  so  clearly  and  conclusively  that  there  is  no  reasonable 
theory  upon  which  he  can  be  innocent,  when  all  the  evidence  iu 
the  case  is  considered  together. 

Preponderance  of  Evidence  not  SrilTicioiit. — Tliat,    In    law,   the    ac- 
cused is  always  presumed  to  Ije  innijcent  until  liis  n-iiilt  is  i-stab- 
y     lished  by  evidence;  and,  to  authorize  a  conviction,  such  guilt 
must  be  established  beyond  a  reasonable  doubt — a  mere  pre- 
ponderance of  evidence  is  not  sutficient. 


IN    CRIMINAL    CASES.  473 

Crime  Must  be  Proved  Beyond  a  Reasonable  Doubt. — The  court  in- 
structs the  jury,  that  before  a  conviction  can  be  rightfully 
claimed  by  the  people,  in  this  case,  the  truth  of  every  material 
averment  contained  in  the  indictment  must  be  proved,  to  the 
satisfaction  of  the  jury,  beyond  any  reascniable  doubt. 

That,  as  a  matter  of  law,  the  defendanis  are  presumed  to  be 
innocent  of  the  crime  charged  in  the  indictment  until  such  time 
as  the  guilt  of  the  parties  charged  is  pi-oved,  as  alleged,  by  com- 
petent evidence,  beyond  any  reasonable  doubt. 

All  the  Evidence  Should  be  Considered. — That  in  order  to  faiily 
determine  whether  the  defendants  are  proven  guilty  of  tlie 
crime  of  (burglary),  in  manner  and  form  as  charged  in  the  in- 
dictment, beyond  any  reasonable  doubt,  as  the  law  requires,  the 
jury  should  take  into  consideration  all  of  the  evidence  elicited 
from  the  defendants'  witnesses,  as  well  as  that  detailed  for  the 
prosecution ;  and  if,  after  a  full  and  dis2:iassionate  consideration 
of  all  the  evidence  in  the  case,  you  still  entertain  any  reasonable 
doubt  as  to  whether  the  defendants,  or  any  of  them,  committed 
the  crime  in  manner  and  form  as  charged  in  the  indictment, 
then  you  should  acquit  the  person  or  persons  as  to  whose  guilt 
you  entertain  such  reasonable  doubt. 

Better  That  Many  (iuilty  Persons  Escape,  Etc. — The  court  instructs 
the  jury,  that  the  policy  of  our  law  deems  it  better  that  many 
guilty  persons  should  escape  i-ather  than  that  one  innocent  person 
should  be  convicted  and  punished;  so  that,  unless  the  jury,  after 
a  careful  and  thorough  consideration  of  all  the  evidence  in  the 
case,  can  say  and  feel  that  every  material  allegation  in  the 
indictment  is  proved,  beyond  a  reasonable  doubt,  the  jury  should 
find  the  defendant  not  guilty. 

Juiy  Should  Endeavor  to  Reconcile  Testimony. — The  jury  are  in- 
structed, that  in  passing  upon  the  testimony  of  {defendanf s) 
witnesses,  in  this  case,  they  should  endeavor  to  reconcile  their 
testimony  with  the  belief  that  all  the  witnesses  have  endeavored 
to  tell  the  truth,  if  they  can  reasonably  do  so  under  the  evidence, 
and  if  reasonably  possible  attribute  any  differences  or  contradic- 
tions in  their  testimony,  if  any  exist,  to  mistake  or  misrecollec- 
tion,  rather  than  to  a  wilful  intention  to  swear  falsely. 


4  74  INSTRUCTIONS 

Want  of  Motive. — That  \v\wn  the  evidoiico  fails  to  show  any 
inotivc  to  coiiiiuit  the  crime  charij^od,  on  the  i)art  of  the  accused, 
this  is  a  circumstance  in  favor  of  his  innocence. 

And,  in  this  case,  if  the  jury  find,  upon  careful  examination 
of  all  the  evidence,  that  it  fails  to  show  any  motive,  on  the  part 
of  the  accused,  to  commit  the  crime  charged  against  him,  then 
this  is  a  circumstance  which  the  jury  ouo;ht  to  consider  in  con- 
nection with  all  the  other  evidence  in  the  case  in  making  up 
their  verdict.      Cloxujh  vs.  State^  7  Neh.,  320. 

Accused  Need  \()t  Testily. — The  court  instructs  the  jury,  that 
while  the  statute  of  this  state  provides  that  a  person  charged 
with  crime  may  testify  in  his  own  behalf,  he  is  under  no  oljliga- 
tion  to  do  so,  and  the  statute  expressly  declares  that  his  neglect 
to  testify  shall  not  create  any  presumption  against  him. 

Failure  to  Testify  — No  Presumption  At,-ainst  Defendant The   court 

instructs  the  jury,  that  Avhile  the  statute  of  this  state  provides 
that  a  person  chai-ged  with  ci-iiue  may  testify  in  his  own  behalf, 
he  is  under  no  obligation  to  do  so;  and  the  statute  expressly 
declares  that  his  neglect  to  testify  shall  not  create  any  pi-esump- 
tiou  against  him.  The  jury  should  decide  tlic  case  with  I'cfer- 
ence  alone  to  testimony  actually  introduced  before  them,  and 
without  reference  to  what  might,  or  might  not,  have  been  proved, 
if  other  persons  had  testified. 

Testimony  of  the  Accused  to  be  Weiglied  by  the  Jury. — The  court  in- 
structs the  jui-y,  that,  although  the  law  makes  the  defendants  in 
this  case  competent  witnesses,  still,  the  jury  are  the  judges  of  the 
weight  which  ought  to  be  attached  to  their  testimcjny;  and,  in 
considering  what  weight  should  be  given  it,  the  jury  should  take 
into  consideration  all  the  facts  and  cii-cumstances  sui-rounding 
the  case,  as  disclosed  by  the  evidence,  and  give  the  defendants' 
testimony  only  such  weight  as  they  believe  it  entitled  to,  in  view 
of  all  the  facts  and  circumstances  proved  on  the  trial. 

That,  although  ihe  defendants  have  a  right  to  be  swoni,  and 
to  give  testimony  in  their  own  behalf,  still,  their  credii)ility  and 
tho  weight  to  hi-  attached  to  such  testimony  are  inattei-s  exclu- 
sively for  the  jury;  and  tlieir  interest  in  the  result  of  the  trial  is 


IN    CRIMINAL    CASES.  4(0 

a  matter  proper  to  be  taken  into  consideration  by  the  j  ury  in  de- 
termining what  weight  ought  to  be  given  to  their  testimony. 

Testimony  of  the  Accused  Should  be  Considered  by  the  Jury. — That  tlie 
jury  have  no  right  to  disregard  the  testimony  of  the  defendant 
(m  the  ground  alone  that  he  is  a  defendant,  and  stands  charged 
with  the  commission  of  a  crime.  The  law  presumes  the  defend- 
ant to  be  innocent  until  he  is  proved  guilty;  and  the  law  allows 
him  to  testify  in  his  own  behalf,  and  the  jury  should  fairly  and 
impartially  consider  his  testimony,  together  with  all  the  other 
evidence  in  the  case,  and  if,  from  all  the  evidence,  the  jury  have 
any  reasonable  doubt  whether,  at  the  time  of  the  shooting  com- 
plained of,  the  pistol  was  accidentally  discharged,  they  should 
give  the  defendant  the  benefit  of  the  doubt  and  acquit  him. 

Circumstantial  Evidence  Competent,  Etc. — The  court  instructs  the 
jury,  that  circumstantial  evidence  is  legal  and  competent  in 
criminal  cases;  and  if  it  is  of  such  a  character  as  to  exclude 
every  reasonable  hypothesis,  other  than  that  the  defendant  is 
guilty,  it  is  entitled  to  the  same  weight  as  direct  testimony. 

Circumstantial  Evidence  Deflned. — The  court  further  instructs  tlie 
jury,  that  what  is  meant  by  circumstantial  evidence  in  criminal 
cases,  is  the  proof  of  such  facts  and  circumstances  connected  with 
or  surrounding  the  commission  of  the  crime  charged,  as  tends  to 
show  the  guilt  or  innocence  of  the  party  or  parties  charged;  and 
if  these  facts  and  circumstances  are  sufficient  to  satisfy  the  jury 
of  the  guilt  of  the  defendants,  or  any  of  them,  beyond  a  reason- 
able doubt,  then  such  evidence  is  suflicient  to  authorize  a  jury  in 
finding  a  verdict  of  guilty,  as  to  such  of  the  defendants  as  the 
jury  are  so  satisfied,  beyond  a  reasonable  doubt,  from  the  evi- 
dence, are  guilty.     Laio  vs.  State,  33  Tex.,  37. 

Facts  Must  all  be  Consistent  witli  Guilt  and  Inconsistent  with  Innocence. 

The  jury  are  instructed,  as  a  matter  of  law,  that  where  a  con- 
viction for  a  criminal  offense  is  sought  uj^on  circumstantial  evi- 
dence alone,  the  people  must  not  only  show,  by  a  preponderance 
of  evidence,  that  the  alleged  facts  and  circumstances  are  true, 
but  they  must  be  such  facts  and  circumstances  as  are  absolutely 


476  INSTRUCTIONS 

iiiooiiipatible,  upon  uny  roasoimblc  hypothesis,  with  the  iimo- 
cence  of  the  accused,  tuicl  incapable  of  e.\phinatit)n,  upon  any 
reasonable  hypothesis,  other  than  that  of  the  guilt  t>f  the 
accused. 

And,  in  this  case,  if  all  the  facts  and  eii'cuinstances,  relied  on 
by  the  people  to  secure  a  conviction,  can  be  reasonably  accounted 
for,  upon  any  theory  consistent  with  the  innocence  of  the  defend- 
ant, then  the  jury  should  ac(piit  him. 

In  criminal  cases  where  the  prosecution  rely  upon  circumstan- 
tial evidence  alone  for  a  conviction,  it  is  not  enough  that  all  the 
circumstances  proved  are  consistent  with  and  point  to  the  defend- 
ant's guilt.  To  authorize  a  conviction  upon  circumstantial  evi- 
dence alone,  the  circumstances  must  not  only  all  be  in  harmony 
with  the  guilt  of  the  accused,  but  they  must  be  of  such  a  char- 
acter that  they  cannot  reasonably  be  true,  in  the  ordinary  nature 
of  things,  and  the  defendant  be  innocent. 

That  to  authorize  a  conviction  on  circumstantial  evidence 
alone,  the  circumstances  should  not  only  be  consistent  with  the 
prisoner's  guilt,  but  they  must  be  inconsistent  with  any  other 
rational  conclusion,  or  reasonable  hypothesis,  and  such  as  to  leave 
no  reasonable  doubt  in  the  minds  of  the  jury  of  the  defendant's 
guilt. 

Decree  of  Certiuiity  Reiiiiirod. — The  rule  of  law  is,  that  to  warrant 
a  conviction  on  a  criminal  charge  upon  circumstantial  evidence 
alone,  the  circumstances  should  be  such  as  to  produce  neai-ly  the 
same  degree  of  certainty  as  that  which  arises  from  direct  testi- 
mony, and  sufficient  to  exclude  all  reasonable  doubt  of  the 
TKirtv's  iruilt.  The  circumstances  ought  to  be  of  such  a  nature 
as  not  to  be  reasonably  accounted  for  on  the  supposition  of  the 
prisoner's  innocence,  but  be  perfectly  reconcilable  with  the  sup- 
position of  his  guilt.     Pei)j)Ie  vs.  PddlUld,  42  Cal.,  535. 

The  court  instructs  the  jury,  that  it  is  an  invariable  rule  of 
law,  that  to  warrant  a  conviction  for  a  criminal  offense  upon  cir- 
cumstantial evidence  alone,  such  a  state  of  facts  and  circum- 
stances must  be  shown  as  that  they  are  all  consistent  with  the 
guilt  of  the  party  charged,  and  sucli  tliat  they  cannot,  ujton  any 
reasonable  theory,  be  true  and  the  party  charged  be  innocent. 


IN    CRIMINAL    CASES.  477 

One  Fact  Inconsistent  with  Guilt. — The  jury  are  instructed,  that 
where  the  prosecution  relies  upon  circumstantial  evidence  alone 
for  a  conviction,  the  jury  must  be  satisfied,  beyond  a  reasonable 
doubt,  that  the  crime  has  been  committed  by  some  one,  in  man- 
ner and  form  as  charged  in  the  indictment;  and  then  tliey  must 
not  only  be  satisfied  that  all  the  circumstances  proved  are  con- 
sistent with  the  defendants  having  committed  the  act,  but  they 
must  also  be  satisfied  that  the  facts  are  such  as  to  be  inconsistent 
with  any  other  rational  conclusion,  than  that  the  defendant  is  the 
guilty  person. 

If  there  is  any  one  single  fact  proved  to  the  satisfaction  of  the 
jury,  by  a  preponderance  of  evidence,  which  is  inconsistent  with 
the  defendant's  guilt,  this  is  sufficient  to  raise  a  reasonable 
doubt,  and  the  jury  should  acquit  the  defendant. 

That  in  order  to  justify  the  inference  of  legal  guilt,  from  cir- 
cumstantial evidence,  the  existence  of  the  inculpatory  facts  must 
be  absolutely  incompatible  with  the  innocence  of  the  accused 
upon  any  rational  theory,  and  incapable  of  explanation  upon  any 
other  reasonable  hypothesis  than  that  of  his  guilt. 

Direct  Evidence  not  Required. — The  court  further  instructs  the 
jury,  that,  while  they  must  be  convinced  of  the  guilt  of  the  de- 
fendant, beyond  a  reasonable  doubt,  from  the  evidence,  in  order 
to  warrant  a  conviction,  still,  the  proof  need  not  be  the  direct 
evidence  of  persons  who  saw  the  offense  committed;  the  acts 
constituting  the  crime  may  be  proved  by  circumstances. 

Admission  in  Criminal  Cases— Must  be  all  Taken  Together. — Where 
the  verbal  admission  of  a  person,  charged  M'ith  crime,  is  offered 
in  evidence,  the  whole  of  the  admission  must  be  taken  together ; 
as  well  that  part  which  makes  for  the  accused,  as  that  which 
may  make  against  him;  and,  if  the  part  of  the  statement  which  is 
in  favor  of  the  defendant  is  not  disproved,  and  is  not,  apparently, 
improbable  or  untrue,  when  considered  with  all  the  other  evi- 
dence in  the  case,  then  such  part  of  the  statement  is  entitled 
to  as  much  consideration  from  the  jury  as  any  other  part  of  the 
statement. 

The  jury  are  instructed,  that  where  evidence  is  given  tending 
to  show  admissions  made  by  the  defendant  in  a  criminal  case,  the 


478  INSTRUCTIONS 

defendant  i>  entitled  to  liave  tlie  whole  of  the  statement,  or  ad- 
mission, lieartl  and  considered  hy  the  jury.  Jhit  tlu^  jury  are 
not  obliired  to  believe,  or  disbelieve,  all  of  such  statement;  they 
may  disregard  such  parts  of  it,  if  any,  as  are  inconsistent  with 
the  other  testimony,  or  which  the  jui-y  believe,  from  the  facts 
and  circumstances  proved  on  the  trial,  are  untrue.  Conner  vs. 
State,  34  Texas,  G59;  Roscoe's  Crim.  Kv.,  55. 

Confessions  Must  be  Treated  Like  Oilier  Evidence. — If  the  jury  be- 
lieve from  the  evidence,  that  the  defendant  made  the  confession 
as  alleged,  and  attempted  to  be  proved  in  this  case,  the  jury 
should  treat  and  consider  su(di  confession  precisely  as  they  would 
any  other  testimony;  and  hence,  if  the  jury  believe  the  whole 
confession  to  be  true  they  should  act  upon  the  whole  as  true. 
But  the  jury  may  believe  part  of  the  testimony  and  reject  the 
T)alance  if  they  see  sufficient  grounds,  in  the  evidence,  for  so  do- 
in<i';  the  jury  are  at  liberty  to  judge  of  it  like  other  evidence,  in 
view  of  all  the  circumstances  of  the  case  as  disclosed  by  the 
evidence.     Jackson  vs.  The  People,  IS  111.,  269. 

Confession  to  be  Received  with  Caution. — The  court  instructs  the 
jurv,  that  the  confessions  of  a  pi-isoner  out  of  court  are  a  doubt- 
ful species  of  evidence,  and  should  be  acted  upon  by  the  jury 
with  o-reat  caution,  and,  unless  thev  are  supiiorted  bv  some  other 
evidence  tending  to  show  that  the  prisoner  committed  the  crime, 
they  are  rarely  suthcient  to  wai-rant  a  convic^tion. 

Confession  T\nien  Corroborated. — Upon  the  subject  of  confessions 
the  court  further  instructs  the  jury,  that  the  credit  and  weight 
to  be  given  to  them  depend  very  much  upon  what  the  confes- 
sions are;  if  the  crime,  itself,  as  charged,  is  proved  by  other  tes- 
timony, and  it  is  also  proved  that  the  defendant  w\as  so  situated 
that  he  had  an  opportunity  to  commit  the  crime,  and  his  confes- 
sions are  consistent  with  such  pr(K)f  and  corroborative  of  it,  and 
the  witness  who  swears  to  the  confession  is,  apparently,  truthful, 
honest  and  intelligent,  then,  confessions  so  made  may  l)e  entitled 
to  great  weight  with  the  jury. 

If  the  jury  believe,  from  the  evidence,  that  the  confessions, 
or  admissions,  testified  to  by  the  witness,  A.  B.,  as  having  been 


IN    CRIMINAL    CASES.  479 

made  to  him  by  the  defendant,  were  so  made,  and  that  they 
were  the  spontaneous  and  vohintary  act  of  the  defendant,  and, 
if  the  jury  further  believe,  that  such  confessions  have  been  cor- 
roborated by  satisfactory  proof  that  the  {^jpropertij  was  stolen)^ 
and  that  the  defendant  was  so  situated  that  he  had  an  oppor- 
tunity to  commit  the  crime,  then,  such  confessions  and  admis- 
sions may  be  entitled  to  great  weight  in  the  minds  of  the  jury; 
and  if  the  juiy  believe,  from  all  the  evidence,  beyond  a  reason- 
able doubt,  that  the  defendant  is  guilty,  then,  they  should  so 
find  by  their  verdict. 

If  the  jury  believe,  from  the  evidence,  that  either  of  the  de- 
fendants, freely  and  voluntarily,  without  fear,  or  hope  of  reward 
or  immunity,  has  confessed  or  admitted  that  he  committed  the 
crime  in  manner  as  charged  in  the  indictment,  and  if  the  jury 
further  believe,  from  the  evidence,  bej'ond  a  reasonable  doubt, 
that  such  crime  was  committed,  and,  also,  that  there  are  strong 
corroborating  circumstances  tending  to  show  that  such  defend- 
ant did  commit  the  crime,  then  the  jury  would  be  warranted  in 
finding  such  defendant  guilty;  provided,  the  jury  believe,  from 
the  evidence,  beyond  a  reasonable  doubt,  that  such  defendant  is 
guilty. 

The  jury  are  instructed,  that  in  criminal  prosecutions,  tXic  ad- 
missions of  the  prisoners  are  received,  in  evidence,  upon  the 
same  principle  that  admissions  in  civil  suits  are  received,  tliat  is, 
the  presumption  that  a  prisoner  will  not,  voluntarily,  make  an 
untrue  statement  against  his  own  interest. 

When  Sufficient  to  Comiet. — If,  in  any  case,  a  conviction  is  re- 
lied upon,  on  the  ground  of  admissions,  unsupported  by  other 
evidence,  such  admissions  or  confessions  should  be  clear  and  un- 
equivocal, and  such  as  to  convince  the  jury,  beyond  a  reason- 
able doubt,  of  the  defendant's  guilt. 

If  the  evidence,  tending  to  show  admissions  of  guilt,  is  sus- 
tained by  evidence  of  other  facts,  then  such  admissions,  even 
if  not  unequivocal,  should  be  taken  into  consideration  with  all  the 
other  evidence  in  the  case,  by  the  jury,  and  allowed  such  weight 
as,  in  the  opinion  of  the  jury,  they  are  entitled  to. 


480  INSTRUCTIONS 

Testimony  of  Accomplice. — Tliut  tlie  witness,  A.  B.,  is  what  is 
known  in  law  as  an  ucconiplicc;  antl,  tliat  while  it  is  a  rule  of 
law  that  a  person  accused  of  crime  may  he  convicted  upon  tlie 
nncorrohorated  testimony  of  an  accomplice,  still,  a  jury  should 
always  act  upon  such  testimony  with  great  care  and  caution,  and 
subject  it  to  careful  examination  in  the  light  of  all  the  other 
evidence  in  the  case;  and  the  jury  ought  not  to  convict  upon 
such  testimony  alone,  unless,  after  a  careful  examination  of  such 
testimony  tliey  are  satisfied,  beyond  any  reasonable  doubt,  of  its 
truth,  and  that  they  can  safely  rely  upon  it. 

The  court  instructs  the  jury,  that  the  witness,  A.  B.,  is  what  is 
known,  in  law,  as  an  accomplice,  and  while  the  law  is,  that  a 
jury  may  convict  upon  the  uncorroborated  testimony  of  such  a 
witness,  still,  the  jury  ought  to  receive  such  testimony  with  great 
caution,  and  scrutini/.e  the  same  with  great  care. 

If  the  jury  believe,  from  the  evidence,  that  the  witness,  A.  B., 
was  induced  to  become  a  witness,  and  testify  in  this  case,  by  any 
promise  of  immunity  from  punishment,  or  by  any  hope  held 
out  to  him,  by  any  one,  that  it  would  go  easier  with  him  in  case 
he  disclosed  who  his  confederates  were,  or  in  case  he  implicated 
some  one  else  in  the  crime,  then,  the  jury  should  take  such  fact 
into  consideration,  in  determining  the  weight  which  ought  to  be 
given  to  his  testimony  thus  obtained,  and  given  under  the  in- 
fluence of  such  promise  or  hope. 

Fabrication  of  Testimony. — The  jury  are  instructed,  that  if  they 
l)elieve,  from  the  evidence,  that  the  ac('us(>d  believed  that  the 
circumstances  surrounding  him  wore  calculat(Ml  to  awaken  sus- 
picion  against  him,  and  that  he  was  ignorant  of  the  nature  and 
course  of  criminal  proceedings,  and,  under  such  belief  was  in- 
duced, by  his  friends,  to  fabricate  testimony,  then,  the  jui-y  may 
take  these  facts  into  consideration  in  considering  the  conduct  of 
the  defcTKhint  in  relation  to  fabricating  such  testimony,  and  in 
determining  his  guilt  or  innocence.  Voe  vs.  The  J-'eojylc,  4i> 
111.,  410. 

Contradictory  and  Inconsistent  Sfalements. — If  the  jury  find,  from 
the  evidence,  that  the  accused,  at  or  about  the  time  of  his 
arrest,  made  false  and  contradictory  statements,  calcidateil   to 


IN    OKI M IN A L    CASES.  4S1 

excite  suspicion  against  him,  still,  these  statements,  if  they  can 
reasonably  be  attributed  to  any  other  motive,  or  cause,  than  that 
of  a  consciousness  of  guilt  of  the  crime  charged  in  the  indict- 
ment, and  a  desire  to  conceal  it,  then  they  should  be  so  attrib- 
uted and  explained,  and  in  such  case  they  should  not  be  regarded 
as  any  evidence  of  guilt  of  the  crime  charged. 

One  Witness  Sufficient  (Except  in  Treason  or  Perjury). — The  court 
instructs  the  jury,  that  the  evidence  of  one  credible  witness 
swearing,  directly,  to  any  material  fact  in  this  case,  if  uncon- 
tradicted by  other  evidence,  or  by  facts  and  circumstances  proven, 
is  sufficient  proof  of  that  fact  for  the  purposes  of  this  trial. 

The  Precise  Crime  Clmrged  Must  be  Proved. — The  jury  are  fur- 
ther instructed,  that  if  the  evidence  leaves  a  reasonable  doubt  in 
the  mind  of  the  jury  whether  the  defendant  is  guilty  of  the 
jjrecise  crime  with  which  he  is  charged  in  the  indictment,  then 
the  jury  should  find  the  defendant  not  guilty,  although  the  evi- 
dence may  show  conduct  of  no  less  turpitude  than  the  crime 
charged,  that  is  not  enough  to  authorize  a  conviction  in  this  trial. 
Stuart  vs.  T/>e  People,  73  111.,  20. 

Statements  of  Prosecuting:  Attorney  not  Based  on  Evidence. — The  jury 
are  instructed,  that  it  would  be  highly  improper  and  wrong  for 
them  to  regard  the  statements  of  the  prosecuting  attorney  that, 
etc.,  as  entitled  to  any  weight  whatever  in  this  case.  And  this 
is  true  of  any  and  all  other  statements  of  his  that  are  not  based 
on  the  evidence  in  the  case,  if  any  such  have  been  made.  Ken- 
nedy vs.  The  People,  40  111.,  488. 

The  court  further  instructs  the  jury,  that  the  allusions  and 
references  of  the  prosecuting  attorney  to  the  supposed  preva- 
lence of  crime  in  the  community,  should  in  no  way  influence  or 
prejudice  your  minds  against  the  defendant  in  this  case.  Your 
duty  is  discharged  when  you  have  determined  his  guilt  or  inno- 
cence of  the  charge  contained  in  this  indictment,  and  there  is  no 
other  question  involved  in  the  case. 

Reasonable  Doubt  Defined. — The  jnry  are  instructed,  that  the 
reasonable  doubt  which  entitles  an   accused  to  acquittal  is  a 

31 


482  INSTRUCTIONS 

doubt  of  ^^uilr  rea>()iial>ly  arising-  from  all  the  evidence  in  the 
case.  The  proof  is  to  be  deemed  to  l)e  beyond  reasonable  doubt 
Avhen  the  evidence  is  sufficient  to  impress  the  judgment  of 
ordinarily  prudent  men  with  a  convicti(m  on  which  they  would 
act,  witliout  hesitation,  in  their  own  most  important  concerns 
or  affairs  of  life.  3  Greeidf.  on  Ev.,  §  29;  Com.  vs.  V/ehster\  5 
Cush.,  820. 

The  court  instructs  the  jury,  that  in  a  legal  sense  a  reasonable 
doubt  is  a  doubr  which  has  some  reason  fur  its  ]»asis;  it  does  not 
mean  a  doubt  from  mere  caprice  or  groundless  conjecture;  a 
reasonable  doubt  is  such  a  doubt  as  the  jury  are  able  to  give  a 
reason  for.     3  Greenlf.  on  Evi.,  13th  ed.,  §  29,  n.  2. 

The  court  instructs  tlu^  j'l^T?  that  a  reasonable  doubt,  within 
the  meaning  of  the  law,  is  such  a  doubt  as  would  cause  a  reason- 
able, prudent,  and  considerate  man,  in  the  graver  and  more 
important  affairs  of  life,  to  pause  and  hesitate  before  acting 
upon  the  truth  of  the  matter  charged  or  alleged.  May  vs.  The 
People,  60  111.,  119. 

The  court  instructs  tlic^  iurv,  that  in  considering  this  case  vou 
'^  should  not  g-o  bevond  the  evidence  to  hunt  for  <loubts,  nor 
should  you  entertain  such  doubts  as  are  merely  chimerical  or 
based  npon  groundless  conjecture.  A  doubt,  to  justify  an 
ac(piittal,  must  be  reasonable,  and  arise  from  a  candid  and  im- 
partial consideration  of  all  the  evidence  in  the  case;  and  then  it 
must  be  such  a  doubt  as  would  cause  a  reasonable,  ])rudent,  and 
considerate  man  to  hesitate  and  pause  beforeacting  in  the  graver 
and  more  important  affairs  of  life.  If,  after  a  careful  and  im- 
partial consideration  of  all  the  evidence  in  the  case,  you  can  say 
and  feel  that  you  have  an  abiding  conviction  of  the  guilt  of  the 
defendant,  and  are  fully  satisfied  of  the  truth  of  the  charge,  then 
you  are  satisfied  beyond  a  reasonal)le  doubt.  Miller  vs.  77/ 
People,Z':i\\\.,^~>1^. 

The  jury  are  instructed,  that  by  the  words  reasonaljlc  doubt  is 
meant  actual,  sul)stantial  doubt;  it  is  that  state  of  the  case  which, 
after  a  com])arison  and  consideration  ot"  all  the  evidence,  leaves 
the  minds  of  the  jurors  in  that  condition  that  they  carmot  say 
they  feel  an  ai»iding  conviction  of  the  guilt  of  the  defendant, 
and  are  fully  satisfied  of  the  truth  of  the  charge. 


IN    CRIMINAL    CASES.  483 

That  while  it  is  necessary  for  the  prosecution  to  prove  every 
material  allegation  in  the  indictment  beyond  a  reasonable  doubt, 
yet  if  the  proof  is  of  that  nature  that  it  would  control  and  decide 
the  conduct  of  reasonable  and  cautious  men  in  the  highest  and 
most  important  affairs  of  life,  then,  as  a  matter  of  law,  facts 
established  by  such  evidence  are  deemed  to  be  established  beyond 
a  reasonable  doubt,  and  the  jury  in  a  criminal  case,  with  that 
kind  and  degree  of  proof  before  them,  as  to  every  material 
allegation  in  the  indictment,  should  convict. 

Rule  does  not  Extend  to  Each  Link  in  the  Cliain,  Etc. — The  rule 
requiring  the  jury  to  be  satisfied  of  the  defendant's  guilt  beyond 
a  reasonable  doubt,  in  order  to  warrant  a  conviction,  does  not 
require  that  the  jury  should  be  satisfied  beyond  reasonable  doubt 
of  each  link  in  the  chain  of  circumstances  relied  upon  to  estab- 
lish the  defendant's  guilt;  it  is  sufiicient,  if  taking  the  testimony 
altogether,  tlie  juiy  are  satisfied,  beyond  a  reasonable  doubt, 
that  the  defendant  is  guilty.  Ilouser  vs.  State^  58  Ga.,  78; 
Jarrell  vs.  State,  58  Ind.,  293;  State  vs.  Ilayden,  45  la.,  11. 


ACCESSORY— AIDERS,  ABETTORS,  ETC. 

Note.— At  common  law,  persons  participating?  in  a  crime  are  either  prin- 
cipals or  accessories.  If  the  crime  is  felony,  they  are  aliiie  felons.  Prin- 
cipals are  such  either  in  the  first  or  second  degree.  Principals  in  the  first 
degree  are  those  who  are  the  immediate  perpetrators  of  the  act.  Principals 
in  the  second  degree  are  those  who  did  not  with  their  own  hands  commit 
the  act,  but  who  were  present,  aiding  and  abetting  it. 

An  accessory  before  the  fact  is  he  who,  being  absent  at  the  time  the 
felony  is  committed,  does  yet  procure,  counsel  or  command  another  to  com- 
mit a  felony.  In  many,  if  not  most,  of  the  states,  an  accessory  before  the 
fact  is  by  statute  declared  to  be  in  law,  as  he  is  in  reason,  either  actually 
or  substantially  a  principal. 

Accessory  Defined — The  court  instructs  the  jury,  that  an  acces- 
sory is  one  who  stands  by  and  aids,  abets,  or  assists,  or  who,  not 
being  present  aiding,  abetting,  or  assisting,  hath  advised,  encour- 
aged, aided  or  abetted  the  perpetration  of  the  crime  charged. 
He  who  thus  aids,  abets,  assists,  advises,  or  encourages,  is  con- 
sidered a  principal  and  punished  accordingly. 


4:84:  INST  It  UCT  IONS 

If  the  jurv  believe,  from  the  evidence,  beyond  a  rea^Joiiable 
doubt,  that  the  defendant  deliberately  and  intentionally  shot 
*  *  *  *  with  a  loaded  revolver,  as  charged  in  the  indict- 
ment, and  that  the  defendant,  A.  13.,  in  any  way  or  manner 
aided,  advised,  or  encouraged  such  shooting,  then  the  jury  should 
rintl  the  defendants  both  guilty;  i)r()vided,  the  jury  further  find, 
from  the  evidence,  beyond  a  reasonable  doubt,  that  such  shooting 
was  not  necessary,  and  did  not  reasonably  ai)i)ear  to  be  necessai-y 
to  save  their  own  lives,  or  to  prevent  them,  or  either  of  them, 
receiving  great  bodily  harm.    Smith  vs.  The  People,  74  111.,  144. 

Aiding,  Advisin^^,  Etc.,  May  Be  by  Words  or  Acts. — The  court  in- 
structs the  jury,  that  the  advising  or  encouraging  that  may  make 
one  an  accessory  to  crime  need  not  be  by  words.  It  may  be  by 
words  or  acts,  signs  or  motions,  done  or  made  for  the  purpose  of 
encouraging  the  commission  of  the  crime.  Brennan  vs.  The 
People,  15  111.,  511. 

Concert  of  Action  Need  not  be  by  Express  A^eement. — The  jury  are 

instructed,  that  while  the  law  requires,  in  order  to  find  all  the 
defendants  gnilty,  that  the  evidence  should  prove,  beyond  a 
reasonable  doubt,  that  they  all  acted  in  concert  in  the  (;ominis- 
sion  of  the  crime  charged,  still  it  is  not  necessary  that  it  should 
be  positively  proven  that  they  all  met  together  and  agreed  to 
commit  the  crime;  such  concert  may  be  proved  by  circum- 
stances; and  if,  fi-om  all  the  evidence,  the  juiy  are  satisfied, 
])eyond  a  reasonable  doul)t,  that  the  crime  was  committed  by  the 
defendant,  and  that  they  all  acted  together  in  the  commission  of 
the  crime,  each  aiding  in  his  own  way,  this  is  all  the  law 
requires  to  make  them  all  equally  guilty.  Miller  vs.  T/ie 
People,  39  111.,  457. 

Aiding:  or  Abetthig  Assault. — The  conrt  instructs  the  jury,  that 
the  rule  of  law  is  that,  as  to  each  of  the  defendants,  in  order  to 
warrant  a  vcrdl(;t  of  guilty  as  to  him,  it  must  appear,  from  the 
evidence,  that  an  assault  was  committed  in  maimer  and  form  as 
chai'ired  in  the  indictment,  and  that  he  was  present,  taking  part 
in  the  assault,  or  was  aiding  and  abctllng  in  the  same,  or  that 
he  had  advised  or  encouraged  the  connnissiou  thereof. 


IN    CRIMINAL    CASES.  485 

And  in  passing  upon  the  guilt  or  innocence  of  each  one  of 
the  defendants,  if  the  evidence  fails  to  establish,  beyond  a 
reasonable  doubt,  tliat  he  was  present,  taking  part  in,  or  aiding 
or  abetting  the  assault,  or  if  he  was  not  present,  that  he  had 
advised  or  encouraged  the  same,  then  as  to  such  defendant,  the 
verdict  should  be  not  guilty. 

If  the  jury  believe,  from  the  evidence,  beyond  a  reasonable 
doubt,  that  any  one  or  more  of  the  defendants  attempted  to  kill 
or  murder  the  said  A.  B.,  In  manner  and  form  as  charged  in  the 
indictment,  and  that  any  one  or  more  of  the  other  defendants 
now  on  trial,  with  the  intent  only  to  commit  an  assault  and  bat- 
tery, and  not  to  murder  the  said  A.  B.,  joined  in  the  attempted 
assault,  and  com])ined  witli  those  who  did  so  intend  to  murder, 
to  assault  and  beat  the  said  A.  B.,  tlien  all  who  so  combined 
and  aided  in  the  attempt  to  commit  said  assault  would  be  guilty 
of  an  assault  with  an  intent  to  kill  and  murder,  in  manner  and 
form  as  charged  in  the  indictment. 

Aiding'  or  xVbettinj,'  Murder. — The  court  further  instructs  the  jury, 
that  if  they  believe,  from  the  evidence,  beyond  a  reasonable 
doubt,  that  the  said  A.  B.  was  unlawfully  killed,  with  malice 
aforethought,  in  manner  and  form  as  chai-o-ed  in  the  indictment, 
and  that  the  defendant,  C.  D.,  was  present,  and  in  any  maimer 
aided,  abetted,  or  assisted  in  such  killing,  or  advised  or  encour- 
aged the  same,  then  the  jury  should  iind  him  guilty,  although 
they  may  believe,  from  the  evidence,  that  some  other  person 
fired  the  fatal  shot  (struck  the  fatal  blow),  and  although  no 
motive  on  his  part  for  the  killing  has  been  shown. 

If  the  evidence,  facts  and  circumstances,  proved  on  the  trial, 
convince  the  jury,  beyond  a  reasonable  doubt,  that  the  said  A.  B. 
was  unlawfully  killed,  with  malice  aforethought,  in  manner  and 
form  as  charged  in  the  indictment,  and  that  the  defendant, 
C.  D.,  was  present,  and  in  any  manner  aided,  assisted  or  abetted 
such  killing,  then  the  jury  should  find  him  guilty,  though  there 
was  no  human  eye  witnessed  the  fact  of  such  killing. 

Advising  and  Enconraginsr,  Not  Being'  Present. — The  court  instructs 
the  jury,  that  if  they  believe,  from  the  evidence,  beyond  a  rea- 
sonable doubt,  that  any  one  or  more  of  the  defendants  is  guilty 


48  Jj  INSTKUCTIONS 

of  the  offence  charged  in  the  indictnient,  and  tluit  any  other  of 
the  defendants  stood  by  at  the  time  and  aided,  abetted  or 
assisted  in  the  commission  of  the  crime,  or  who,  not  being  pres- 
ent, liad  advised  or  encouraged  the  commission  of  the  same, 
then  such  other  persons  so  aiding,  abetting,  advising  or  encour- 
aging, are,  in  law,  guilty  as  principals,  and  the  jury  should  so 
find  by  their  verdict. 

Aiding  and  Abetthig  in  Biirglary. — If  the  jury  believe,  from  the 
evidence,  beyond  a  reasonable  doubt,  that  a  burglary  was  com- 
mitted, as  charged,  and  that  tlie  defendant,  A.  B.,  was  standing 
by,  aiding,  abetting,  assisting  or  encouraging  the  commission  of 
the  crime,  then  it  is  the  duty  of  the  jury  to  hud  him  guihy  in 
manner  and  form  as  charged  in  the  indictment. 

Present,  but  Not  Aiding  or  Assisting. — Though  the  jury  may  be- 
lieve, from  tlie  evidence,  that  the  said  A.  B.  was  murdered  at 
the  time  and  place  in  question,  and  that  the  defendant,  C.  D., 
was  present  at  the  time  of  such  murder;  still,  if  tlie  jury  are  not 
satisfied,  from  the  evidence,  beyond  a  reasonable  doubt,  that  the 
said  C.  D.  was  previously  aware  of  the  purpose  to  commit  such 
murder,  or  that  he,  in  some  way,  aided,  abetted  or  assisted  in  the 
killing,  or  advised  or  encouraged  it,  then  they  should  hnd  the 
said  C.  D.  not  ffuiltv,  thoui:;h  thev  further  believe,  from  the  evi- 
dence,  that  he  subsequently  failed  to  disclose  the  killing,  or  even 
concealed  the  same. 

Any  One  or  3Iore  May  be  Found  Guilty. — The  court  insti'ucts  the 
jury,  that  if,  from  a  considei-ation  of  all  the  facts  and  circum- 
Rtances  detailed  in  evidence,  the  juiy  believe,  from  the  evidence, 
beyond  a  reasonable  doubt,  that  the  defendants,  or  any  one  or 
more  of  them,  ai-e  guilty  of  the  crime  charged  in  the  imlict- 
ment,  they  should  so  find,  by  their  verdict,  as  to  each  particular 
defendant.  It  is  not  necessary  to  find  all  the  defendants  guilty 
in  order  to  find  any  one  or  more  of  them  guilty. 


IN    CRIMINAL    CASES. 


487 


ASSAULT  WITH   INTENT  TO  COMMIT  MURDER. 

Assault  Defined The  court  instructs  the  jury,  that  an  assault 

is  an  unlawful  attempt,  coupled  with  a  present  ability,  to  commit 
a  violent  injury  on  the  person  of  another.  And,  in  this  case, 
unless  the  jury  believe,  from  the  evidence,  beyond  a  reasonable 
doubt,  that  the  defendant  made  an  attempt  to  shoot  the  witness, 
A.  B.,  with  a  loaded  pistol  or  revolver,  intending  to  shoot  him, 
and  with  a  then  present  ability  to  shoot  him,  then  the  jury  should 
find  the  defendant  not  guilty. 

Must  be  Such  as  Would  be  Murder  if  Death  had  Ensued. —  In  order 
to  justify  a  verdict  of  guilty  of  the  crime  of  an  assault  with 
intent  to  commit  murder,  the  facts  and  circumstances  proved  in 
the  case  must  be  such  that  if  death  had  resulted  from  the  shoot- 
ing, the  jury  would  have  found  the  defendant  guilty  of  wilful 
murder.  King  vs.  State^  21  Ga.,  220;  State  vs.  Malconib,  8  la., 
413;  Sharp  vs.  State,  19  Ohio,  379. 

Doubt  as  to  Intent,  Etc. — If  the  jury  have  a  reasonable  doubt, 
from  the  evidence  in  the  case,  whether  the  gun  was  accidentally 
or  intentionally  discharged,  the  defendant  is  entitled  to  the  ben- 
efit of  such  doubt,  and  the  jury  should  find  the  defendant  not 
guilty. 

Pi*esunied  to  Intend  the  Natural  Conseriuences,  Etc. — The  jury  are 
instructed,  that  the  natural  and  probable  consequences  of  every 
act  deliberately  done  by  a  person  of  sound  mind,  are  presumed 
to  have  been  intended  by  the  author  of  such  act.  And  if  the 
jury  believe,  from  the  evidence,  beyond  a  reasonable  doubt,  that 
the  defendant  did  shoot  the  said  A.  B.,  as  charged  in  the  indict- 
ment, and  that  the  natural  and  ordinary  consequences  of  such 
shooting  would  be  the  death  of  the  said  A.  B.,  then  the  pre- 
sumption of  law  is  that  the  defendant  did  shoot  the  said  A.  B. 
with  intent  to  kill  him;  and  if  the  shooting  was  done  with 
malice  aforethought,  either  expressed  or  implied,  as  explained  in 
these  instructions,  the  jur}^  should  find  the  defendant  guilty  of  au 
assault  with  an  intent  to  commit  murder. 


4S8  INSTKrCTIOXS 

Reckless  Shooting— Wanton  Injury. — If  tlic  jury  lielievo,  from  i\\a 
ovideiiee,  bevond  a  reasonable  {]oul)t,tbat  tbe  defeiulant  jxiiiitcil 
the  i;uu  at  the  said  A.  B.,  and  disc-handed  the  same,  cither  with 
maliee  aforethoiiii^lit,  or  with  a  reckless  and  total  disrepird  of 
human  life,  and  that  the  use  of  the  said  weapon,  as  used  b>-  the 
said  defendant,  was  likely  to  kill  the  said  A,  B.,  then  the  said 
defendant  is  guilty  of  an  assault  with  an  intent  to  connnit  nnirder. 

Facts  Showuisr  Deliberation. — That  to  reduce  an  unlawful  killing 
of  a  human  being  from  the  crime  of  murder  to  that  of  man- 
slauirhter,  on  the  irround  rhat  it  was  not  done  with  malice  afore- 
thought,  it  must  appear,  from  the  evidence,  that  the  act  was  done 
under  such  a  sudden  impulse  of  passion  as  was  apparently  irre 
sistible,  provoked  by  a  serious  and  highly  provoking  injury  ui)on 
the  person  of  defendant,  or  by  an  attempt  by  the  deceased  to 
commit  a  seriously  personal  injury  upon  defendant. 

And  if  the  jury  believe,  from  the  evidence,  beyond  a  reason- 
able doubt,  that  the  defendant,  after  the  {alleyed  j)f'ovocation) 

was  given,  deliberately  went  to  the  house,  some distant,  and 

got  his  gun,  and  returned  with  it,  and  shot  the  said  A.  B.,  as 
charged  in  the  indictment,  then  malice  is  presumed,  unless  its 
presence  is  rebutted  by  the  other  evidence  in  the  case;  and  the 
defendant  is  also  presumed  to  have  intended  the  natural  conse- 
(piences  of  his  acts,  and  in  such  case,  if  death  had  ensued,  it 
would  have  been  murder,  and  the  jury  should  find  the  defendant 
guilty  of  an  assault  with  intent  to  nnn-der. 

Intent  may  be  Proved  by  Circnmstances. — That  to  constitute  the  of- 
fense charged  in  this  case,  the  intent  alleged  in  the  indictment 
is  necessary  to  be  proved,  but  direct  and  positive  testimony  is 
not  necessary  to  prove  the  intent;  it  may  be  inferred,  from  the 
evidence,  if  there  are  any  facts  proved,  which  satisfy  the  jury, 
beyond  a  reasonable  doubt,  of  its  existence.  lioberts  vs.  The 
People,  19  Mich.,  401. 

Intent  Must  Ai)j)ear. — Before  the  jury  can  find  the  defendant 
guiltv  of  an  assault  with  intent  to  connnit  murder,  the  jury  must 
believe,  from  the  evidence,  beyond  a  reasonable  doubt,  that  the 
defendant  shot  the  said  A.  B.  under  such  circumstances  as  muni- 


IN    CRIMINAL    CASES.  489 

fest  a  deliberate  intention  unlawfully  to  take  away  the  life  of 
said  A.  B. ;  or  else,  under  circumstances  showing  that  no  consid- 
erable provocation  for  the  assault  existed,  or  where  all  the  cir- 
cumstances of  the  transaction  show  an  abandoned  and  malignant 
heart  on  the  part  of  the  defendant  at  the  time. 

Before  the  jury  can  convict,  under  the  indictment  in  this  case, 
they  must  be  satisfied,  from  the  evidence,  beyond  a  reasonable 
doubt,  that  the  defendant  intended  to  murder  the  prosecuting 
witness — that  he  had  this  intent  at  the  time  of  the  firing,  and 
that  he  fired  the  shot  without  any  reasonable  apprehension  of  re- 
ceiving from  the  prosecuting  witness  any  great  bodily  harm;  or 
else,  where  there  was  no  considerable  provocation,  or  where  all 
the  circumstances  show  an  abandoned  and  malignant  heart.  2 
Bish.  on  Crim.  Law.,  §  759. 

Intention  to  Kill  Must  Exist. — The  jury  are  instructed,  that  in 
order  to  convict  the  defendant  of  an  assault  with  intent  to  mur- 
der the  said  A.  B.,  it  is  necessary  for  the  people  to  prove  that  the 
defendant  maliciously  and  deliberately  formed  an  intention  to 
kill  the  prosecuting  witness,  A.  B.,  and  that  with  such  deliber- 
ately formed  intention,  he  attemj^tted  to  carry  such  intention  into 
effect,  and  was  only  prevented  from  so  doing  by  some  interposi- 
tion not  of  his  own  will ;  or  else,  under  circumstances  showing 
that  there  was  no  considei-able  pi-ovocation  for  the  attack  on  the 
said  A.  B. ;  or  where  all  the  circumstances  show  an  abandoned  and 
malifrnant  heart.  And  this  must  be  established  bevond  a  reason- 
able  doubt,  and  if  the  prosecution  have  failed  so  to  prove  these 
matters,  then  the  jury  must  acquit  the  defendant  of  the  offense 
of  an  assault  with  an  intent  to  commit  murder.  2  AYliar.  on 
Crim.  Law,  G.  1279;  1  Bish.  on  Crim.  Law,  §  492. 

That  the  charfje  in  this  indictment  is  an  assault  witli  an  intent 
to  commit  murder,  and  in  order  to  warrant  a  conviction  for  this 
offense,  the  jury  must  be  satisfied,  from  the  evidence,  bej'ond  a 
reasonable  doubt,  that  before,  or  at  the  time,  the  blow  was  struck 
the  defendant  had,  with  malice  aforethought,  formed  the  design 
to  kill  the  prosecuting  witness,  A.  B.,  and,  that  in  furtherance  of 
this  malicious  design,  the  blow  was  struck;  or  else,  that  there 
was  no  considerable  provocation  for  the  blow,  or  that  all  the  cir- 
cumstances shoM'  an  abandoned  and  malignant  heart  on  the  part 
of  defendant. 


490  INSTRUCTIONS 

The  jiirv  arc  instructed,  that  the  intent  being  one  of  the  prin- 
cipal elements  of  the  crime  charg-eJ  against  the  defendant,  it  is 
necessary  for  the  people  to  prove,  beyond  a  reasonable  doubt, 
that  the  assault  was  made  upon  the  said  A.  B.  with  malice  afore- 
thought, or  with  the  intention  previously  formed  to  kill  him;  and, 
if  the  jury  entertain  a  reasonable  doubt  of  the  existence  of 
such  intent,  then  they  must  ac<|nit  the  defendant  of  the  offense 
of  an  assault  with  the  intent  to  connnit  nnirder. 

The  court  instructs  the  jury,  that  under  an  indictment  for  an 
asssault  with  intent  to  kill  aiul  murder,  or  for  an  assault  with  a 
deadly  weapon  with  an  intent  to  intiict,  on  the  person  of  another, 
a  bodily  injury,  where  no  considerable  provocation  appears,  or 
when  the  circumstances  of  the  assault  show  an  abandoned  and 
malignant  heart,  the  intent  is  the  gist  of  the  offense,  and  must 
be  specifically  made  to  appear  by  the  evidence;  and,  in  this  case, 
if  the  evidence  fails  to  prove  an  intent,  on  the  part  of  the  de- 
fendant, to  commit  the  crime  charged  in  the  indictment,  or  else 
to  commit  an  assault  with  a  deadly  weapon  with  an  intent  to  in- 
lliet,  upon  the  said  A.  B.,a  bodily  injury,  where  no  considerable 
prov(,)eation  appeared,  or  where  the  circumstances  of  the  assault 
showed  an  abandoned  or  malignant  heart,  the  jury  should  find 
the  defendant  not  guilty  of  the  crime  charged  in  the  indictment. 

lilowin  Heat  of  Passion  Without  Intention  to  Kill. — If  the  jury  be- 
lieve, from  the  evidence,  that  at  the  time  of  the  affray  between 
the  parties,  a  sudden  quarrel  arose,  and  that  the  blow  was  given 
in  the  heat  of  passion,  and  without  premeditation,  and  M'ithout 
any  intention  to  kill,  then  the  offense  would  not  amount  to  an 
assault  with  an  intent  to  murder. 

Incapable  of  Forming  Intent  from  Drunkenness. — The  court  instructs 
the  jury,  that,  in  this  case,  in  order  to  M'arrant  a  conviction  of 
the  defendant,  the  jury  must  be  satisfied,  from  the  evidence,  not 
only  that  the  defendant  made  an  assault  upon  the  said  A,  B.,  as 
charged  in  the  indictment.  l)iit  it  must  als(j  appeal',  i'l'om  the  evi- 
dence, that,  at  the  time  he  made  the  assault,  he  had  formed  in 
his  own  mind  a  delil)erat(!  intention  to  take  the  life  of  the  said 
A.  B. ;  and,  if  the  jury  furtiier  believe,  from  tiu'  evidence,  that 
at  the  time  of  the  alleged  assault,  the  defendant  was  so  deeply 


IN    CRIMINAL    CASES. 


491 


intoxicated  or  besotted  with  drink  that  he  was  incapabk  of  en- 
tertaining or  forming  any  positive  intent  to  kill  the  said  A.  B., 
then  the  jury  should  acquit  the  defendant  of  the  crime  of  an  as. 
sault  with  intent  to  commit  murder.  Mooiiey  vs.  TJie  State,  33 
Ala.,  419;  State  vs.  Garveij,  11  Minn.,  154;  Pigman  vs.  State, 
14  Ohio,  555;  1  Bishop,  Grim.  Law,  §  492. 

Must  be  Proved  Beyond  a  Reasonable  I>onl)t. — The  jury  are  in. 
structed,  that  if  they  believe,  from  the  evidence  in  the  case,  that 
there .  is  a  reasonable  doubt  as  to  whether  the  prisoner,  at  the 
time  of  the  shooting,  was  under  reasonable  apprehension  that  the 
prosecuting  witness  intended  to  inflict  upon  him  great  bodily 
harm,  and  that  he  fired  the  shot  in  self-defense,  then  the  jury 
must  acquit.     Lawlor  vs.  The  People,  74  111.,  230. 

Every  Material  Allegation  Must  be  Proved. — That  the  people  are 
bound  to  prove  every  material  allegation  of  the  indictment  be- 
yond a  reasonable  doubt,  and  if  the  jury  entertain  a  reasonable 
doubt  of  any  one  of  the  elements  necessary  to  constitute  the 
crime  of  an  assault  with  an  intent  to  murder,  they  must  acquit 
the  defendant  of  that  crime. 

The  court  instructs  the  jury,  that  if  they  believe,  from  the  evi- 
dence, beyond  a  reasonable  doubt,  that  the  defendant  committed 
an  assault  upon  the  said  A.  B.,  in  manner  and  form  as  charged 
in  the  indictment,  then  the  jury  should  hud  the  defendant  guilty. 

Terdict  May  be  for  an  Assault  with  a  Deadly  Weapon. — The  court 
further  instructs  the  jury,  that  under  the  indictment  in  this  case, 
they  may  find  the  defendant  guilty  of  an  assault  with  intent  to 
murder,  or  guilty  of  an  assault  with  a  deadly  weapon,  with  in- 
tent to  commit  a  bodily  injury,  when  no  considerable  provoca- 
tion appears,  or  when  the  circumstances  of  the  assault  show  an 
abandoned  and  malignant  heart,  and,  if  after  a  full  and  care- 
ful consideration  of  all  the  evidence,  the  jury  have  a  reasonable 
doubt,  whether  the  defendant  is  guilty  of  an  assault,  with  an  in- 
tent to  kill,  but  do  believe,  from  the  evidence,  beyond  a  reason- 
able doubt,  that  defendant  is  guilty  of  an  assault,  with  a  deadly 
weapon,  and  with  intent  to  do  great  bodily  injury  upon  the  per- 
son of  the  said  A.  B.,  where  no  considerable  provocation  appears, 
or  under  circumstances  which  show  an  abandoned  and  malig- 
nant heart,  then  the  jury  should  so  find  by  their  verdict. 


492  INSTRUCTIONS 


ASSAULT  WITH   A  DEADLY  WEAPON  WITH   INTENT,  ETC. 

Assault  with  a  Knife  Cliar^ed. — If  the  jury  believe,  from  the  evi- 
dence in  this  case,  that  the  defenchmt  made  an  assanlt  npon  the 
Baid  A.  B.,  with  any  sharp,  (U'adly  weapcni,  capable  of  protbu^- 
in'>-  a  dangerous  cutting  woiiiul,  in  mauner  and  iorni  as  charged 
in  the  indictment,  then  tlie  jury  shuuhl  lind  the  defendant 
ji-uiltv. 

Proof  of  Instrument  of  tlic  Same  Kind  Sufficient. — It  is  innnaterial, 
in  this  case,  whether  the  alleged  injury  was  inllicted  witli  a  knife, 
or  not;  provided,  the  jury  believe,  from  the  evidence,  beyond  a 
reasonable  doubt,  that  the  defendant  made  an  assault  upon  the 
said  A.  B,,  with  some  sharp,  cutting  instrument,  capable  of  in- 
tlictinir  a  dangerous  cuttini>;  wound,  and  of  doing  great  bodilv 
injury,  with  intent  to  iullid  u[)(>n  the  person  of  the  said  A.  U. 
a  bodily  injury  without  any  considerable  pi-ovocation  therefor, 
or  under  circumstances  showing  a  malignant  heart,  in  manner 
and  form  as  charged  in  the  iudictinont,  for  in  such  case  the 
jury  should  find  the  defendant  guilty.  Roscoe's  Grim.  Ev.,  705 ; 
2  Whar.  on  Crim.  Law,  §  1059. 

If  the  jurv  believe,  from  the  evidence,  beyond  a  reasonable 
doubt,  that  the  defendant  did  make  an  assault  u])(>ii  the  said 
A.  B.,  with  a  deadly  weapon,  in  manner  and  form  as  charged  in 
the  indictment,  and  that  there  was  no  considerable  provocation 
given  for  such  assault,  or  that  the  cii-cumstances  of  the  assault 
showed  an  abandoned  and  malignant  heart  on  the  part  of  the 
defendant,  at  the  time,  then  the  jury  should  find  the  defendant 
guilty. 

What  Sufflcient  to  Prove. — That  all  that  is  necessary  for  the  peo- 
ple to  prove  in  this  case,  in  order  to  warrant  a  conviction,  is 
enough  to  satisfy  the  jury,  Irdiii  the  c\idcnce,  beyond  a  reason- 
able doubt,  that  the  defendant   within  years  before  the 

finding  of  this  indictment,  within  the  county  of,  etc.,  made  an 
assault  upon  the  person  of  the  said  A.  B.,  with  a  revolver, 
loaded  witli  powder  and  ball;  that  the  same  was  then  and  there 


IN    CRIMINAL    CASES.  493 

a  deadly  weapon,  and  that  such  assault  was  made  with  intent  to 
iutliet,  upon  the  person  of  the  said  A.  B.,  a  bodily  injury  when 
no  considerable  provocation  appeared,  or  when  the  circumstances 
of  the  assault  show  an  abandoned  and  malignant  heart  on  the 
part  of  the  defendant  at  the  time. 

What  Necessary  to  Prove. — The  court  instructs  the  jury,  that  to 
authorize  a  conviction  in  this  case  every  material  allegation  in 
the  indictment  must  be  proved,  beyond  any  reasonable  doubt. 
Amons:  the  material  allegations  in  this  indictment  are:  Ist, 
An  assault  with  a  deadly  weapon.  2d,  That  the  deadly  weapon 
was  a  knife,  or  some  other  weapon  capable  of  producing  a 
wound  similar  to  that  of  a  knife.  3d,  That  the  assault  was 
made  upon  the  said  A.  B.  with  intent  to  inflict  upon  him  a  bod- 
ily injury.  4th,  That  there  was  no  considerable  provocation  foi- 
the  assault,  or  that  it  was  made  under  circumstances  showing  an 
abandoned  or  malignant  heart. 

If  the  evidence  fails  to  establish  either  one  of  these  essen- 
tial elements  of  the  offense  charged,  beyond  a  reasonable  doubt, 
then  it  will  be  the  duty  of  the  jury  to  acquit  the  defendant. 

Intent  Must  l)e  Proved. — In  this  case  it  is  incumbent  upon  the 
prosecution  to  j^rove  not  only  that  an  assault  was  made,  as  charged 
in  the  indictment,  but  also  that  the  assault  was  made  with  the 
intent  therein  charged. 

No  Crime  Without  Intent. — A  criminal  intent,  as  explained  in 
these  instructions,  is  always  necessary  to  constitute  a  crime,  and 
when  such  criminal  intention  does  not  appear,  from  all  the  facts 
and  circumstances  proved  on  the  trial,  then  the  act  complained 
of,  cannot  be  deemed  a  crime.  Misadventure,  or  accident,  when 
the  circumstances  rebut  the  presumption  of  criminal  intention, 
and  of  criminal  negligence,  as  explained  in  these  instructions, 
are  not  deemed,  in  law,  criminal,  however  injuriously  they  may 
affect  persons  or  property.  And,  in  this  case,  if  the  jury  believe, 
from  the  evidence,  that  while  the  defendant  and  the  prosecuting 
witness  were  struggling  together,  the  pistol  in  question  was  dis- 
charged, accidentally,  then  the  jury  should  find  the  defendant  not 
guilty. 


404  INPTRUCTIOXa 

Til  this  ease,  if  the  proseeiitioii  has  failed  to  estahlish,  l)eyoii(l 
a  reasonable  doubt,  that  the  defendant  intended  to  use.  and  did 
use  the  pistol  in  question,  at  the  time  of  the  diffieulty,  for  the 
purpose  of  intiicting  an  injury  upon  the  said  A.  B.,  in  manner 
and  form  as  eharired  in  the  indictment,  or  with  an  intent  to  do 
him  a  bodilv  injury,  the  jury  should  ac(jiiit  the  defendant. 

Presumption  of  Intent  may  be  Rebutted, — The  court  instructs  the 
jury,  that  intent  is  the  gist  of  all  crimes,  and  although  the  law 
presumes  that  a  person  intends  the  natural  results  of  his  own 
acts,  yet  such  presumption  may  be  rebutted  by  the  circumstances 
of  the  case;  and  if  the  circumstances  and  sui-i-oundings  of  a  case 
show  that  there  was  no  malice,  and  that  there  was  no  intention 
to  do  what  was  actually  done  in  the  way  of  inflicting  the  injury, 
then  there  can  be  no  guilt.  And  if,  under  the  evidence  in  this 
case,  the  jury  can  reasonably  find  that  the  shooting  was  not 
intentional,  nor  the  result  of  criminal  negligence,  as  explaine<l 
in  these  instructions,  but  was  the  result  of  accident  or  misad- 
venture, then  the  jury  should  find  the  defendant  not  guilty. 

Innocence  Presumed. — The  court  instructs  the  juiy,  that  the  law 
presumes  the  defendant  in  this  case  to  be  an  honest  man,  and 
innocent  of  the  crime  charged  in  the  indictment;  and  this  legal 
presumption  of  innocence  continues  up  to  the  very  moment  that 
the  evidence  proves  to  the  contrary,  beyond  the  existence  of  a 
reasonable  doubt.  And  in  this  case,  if  the  jury  have  any  reason- 
able doubt  of  the  truth  of  any  fact,  material  for  the  prosecution 
to  prove  in  order  to  overcome  this  legal  presumption,  then  you 
must  give  the  defendant  the  benefit  of  this  doubt,  and  acquit 
him. 

A  Deadly  Weapon  Defined. — The  court  instructs  the  jury,  that  liy 
the  woixls  "  a  deadly  weapon,"  the  law  means  any  weapon  which 
is  likely,  from  the  use  made  of  it  at  the  time,  to  pi-oduce  death 
or  do  great  bodily  harm.  2  Whar.  on  Crim.  Law,§  944;  1  Bish. 
on  Crim.  Law,  §  3o5, 


IN    CRIMINAL    CASES.  495 


BURGLARY.- 

What  Constitutes  Burglary. — If  the  jury  believe,  from  tlie  evi- 
dence, beyond  a  reasonable  doubt,  that  the  defendants,  or  either 
of  them,  wilfully,  maliciously,  feloniously,  and  forcibly,  did 
break  and  enter  the  house  of  the  said  A.  B.  (in  the  night  time), 
at  and  within  this  county,  with  intent,  the  goods  and  chattels  of 
of  the  said  A.  B.,  then  and  there  in  the  said  dwelling-house 
being,  feloniously  and  burglariously  to  steal,  take  and  carry  away, 
then  the  j  ury  should  find  the  defendants,  or  such  of  them  as  you 
so  find  to  have  broken  and  entered  such  dwelling-house,  guilty  of 
the  crime  of  burglary. 

If  the  jury  believe,  from  the  evidence,  that  the  defendant 
broke  and  entered  the  dwelling-house  of  A,  B.  (in  the  night  time), 
at  and  within  this  county,  in  manner  and  form  as  charged  in  the 
indictment,  with  intent  to  steal  the  goods  and  chattels  of  the  said 
A.  B.,  then  and  there  being  in  said  house,  as  charged  in  the 
indictment,  then  the  jury  should  find  the  defendant  guilty. 

If  the  jury  believe,  from  the  evidence,  that  the  defendant 
broke  and  entered  the  dwelling-house  of  the  said  A.  B.,  witli  a 
felonious  intent,  in  manner  and  form  as  charged  in  the  indict- 
ment, either  by  entering  through  an  open  window  or  door,  or  by 
raising  a  window  or  opening  a  door,  such  entering  of  the  house 
constitutes  the  crime  of  burglary. 

Prima  Facie  Case. — If  the  jury  believe,  from  the  evidence,  that 
the  defendant  was  found,  on  the  night  in  question,  in  the  house 
of  the  said  A.  B.,  and  in  the  bed-room  of  the  witness,  E.  D.,  and 
that  he  entered  the  house  by  raising  a  window,  then  such  being 
in  the  house,  unless  explained  in  some  way  by  the  evidence,  con- 
sistently with  innocence,  will  justify  the  jury  in  presuming  that 
such  entry  was  made  with  a  felonious  intent,  in  manner  and 
form  as  charged  in  the  indictment. 

Intent  Must  Appear. — The  jury  are  instructed,  that  in  order  to 
convict  the  defendant  of  the  crime  of  burglary,  as  charged  in 
the  indictment,  the  prosecution  must  prove  to  the  satisfaction  of 


4i)G  INSTliUOTIONS 

t!ie  jnry,  ami  to  the  exclusion  of  every  reas()iial)le  tlouUt,  not 
only  that  the  defen<lant  wilfully,  forcihly,  maliciously  and  hnr- 
i;-lai-iously  broke  and  entered  the  liouse  of  the  said  .V.  J>.,  hut 
also  that  he  broke  and  entered  said  house  with  the  intent  and  for 
the  purpose  of  stealing  the  goods  and  chattels  of  the  said  A.  !»., 
then  and  there  being  in  said  house;  and  if  the  pi-osccution  has 
failed  to  prove  either  of  these  essential  elements  of  tlu;  ci-ime,  as 
charged  in  the  indictment,  lieyond  a  reasonable  d<jul)t,  then  the 
jury  should  acquit  the  defendant. 

Though  the  jury  shall  be  satisfied,  from  the  evidence  that  the 
defendant  Ijroke  and  entered  the  house  of  the  said  A.  1>.,  as 
chai'ged  in  the  indictment,  still,  if  the  jury  entertain  any  reason- 
able doubt  as  to  whether  or  not  he  entered  the  house  with.intent 
to  steal  the  goods  and  chattels  of  the  said  A.  !>.,  then  the  jury 
should  arive  the  defendant  the  benefit  of  the  doubt,  and  iind  him 
not  guilty. 

What  Constitutes  a  BresikiniB:. — The  court  instructs  the  jury,  that 
while  it  is  necessary,  in  order  to  constitute  the  crime  of  bui-glai-y, 
that  there  should  be  a  breaking  and  an  entry  of  the  l)uilding 
described  in  the  indictment,  with  the  intent  therein  charged,  yet 
to  constitute  a  l)reaking  ii;to  the  l)uilding  it  is  not  necessaiw  that 
any  injury  should  be  done  to  the  building,  its  doors  or  windows; 
such  breaking  may  be  actual  or  constructive.  An  actual  break- 
ing may  be  by  lifting  a  latch  and  opening  a  dooi-,  by  turning 
back  or  opening  the  lock  and  opening  the  door,  removing  or 
breaking  a  pane  of  glass,  or  raising  a  window,  or  anything  by 
which  an  obstruction  to  entering;  the  building  by  the  body,  or 
any  part  of  it,  is  remove<l,  is  a  breaking  within  the  meaning  of 
the  law. 

A  constructive  bi'eaking  is  committed  when  admission  is 
obtained  by  threats,  or  by  fraud,  or  false  pretences. 

What  Constitutes  an  Entry. —  And  to  constitute  an  entry  within 
the  meaning  of  the  law  it  is  not  necessary  that  the  whole  body 
should  be  introduced  into  the  building.  It  is  sufHcient  if  the 
liand,  or  even  a  linger,  or  any  instrument  held  in  the  hand  is 
introduced  into  the  building  for  the  purpose  and  with  the  intent 
charged  in  tlip  infli(!tment.  Third  (ireenlf.  Evi.,  §  T6-77;  lics- 
goe's  Crim.  Evi.,  341-040;  1  Bishop,  Crim.  Law,  §  327. 


IN    CRIMINAL    CASES.  407 

May  be  Found  triiilty  of  Larceny. — The  jury  are  iiisti'U(;ted,  that 
under  an  indictment  for  burglary  the  accnsed  may  be  found 
guilty  of  a  larceny,  and  in  this  case,  if  the  jury  are  not  satisfied, 
from  the  evidence,  that  the  defendant  committed  the  l)urglarv, 
as  charged  in  the  indictment,  still,  if  the  jury  believe,  from  the 
evidence,  beyond  a  reasonable  doubt,  that  the  defendant  did 
steal  the  goods  described  in  the  indictment,  from  the  possession 
of  the  said  A.  B.,  then  the  jury  may,  under  this  indictment,  find 
the  defendant  guilty  of  larceny. 

[See  Larceny.] 

PROOF    OF    IDENTITY. 

Pi'oof  of  Identity. — The  court  further  instructs  the  jury,  that  to 
justify  a  conviction  of  the  defendants,  their  identity  as  tlie 
guilty  persons  must  be  proved,  beyond  every  reasonable  doubt, 
and  the  jury  are  not  bound  to  believe  that  the  witness  was  able 
to  identify  the  prisoners  with  certainty  because  he  swears  posi- 
tively to  their  identity;  and  the  jury  should  not  so  believe,  if 
they  themselves  are  satisfied,  from  the  circumstances  proved, 
that  there  is  a  reasonable  doubt  as  to  whether  the  witness  was 
able  to  and  did  identify  the  defendants,  or  any  of  them,  as  the 
guilty  persons. 

So  far  as  regards  the  question  of  identity  of  the  defendants  the 
court  instructs  the  jury,  that  if  they  believe,  inmi  the  evidence, 
and  the  circumstances  proved,  that  there  is  reas()nal)le  donl)t 
whether  the  witness  might  not  be  mistaken  as  to  their  identity, 
then  before  the  jury  would  be  authorized  to  convict  the  prisoners 
the  corroborating  circumstances  tending  to  establish  their  identity 
must  be  such  as,  with  other  testimony,  produces  a  degree  of 
certainty  in  the  mind  of  the  jury,  so  great  that  they  can  say  and 
feel  that  they  have  no  reasonable  doubt  as  to  the  identity  of  the 
defendants. 

Doubt  Jis  to  Defendant  or  Somebody  Else. — In  determining  tlio 
question  as  to  whether  the  evidence  does  point  as  strongly  to  the 
guilt  of  the  (three)  unknown  men  testified  to  by  the  witnesses, 
A.  and  B.,  as  it  does  to  the  prisoners  at  the  bar,  it  is  competent 
for  the  jury,  and,  in  fact,  they  should  take  into  consideration  the 

32 


498  ixsTR rcTioNs 

fact,  if  proven  in  the  case,  that  a  few  niinntes  before  tlic  com- 
mission of  the  burghiry,  the  said  {three)  unknown  men  wei-e  near 
tlie  ]tlace  where  tlie  crime  was  committed;  and  also  consider 
whether  they  did  not,  then  and  there,  have  the  same  o[)[»(>rtunity 
to  conunit  sucli  crime  as  tlie  defendants  did. 

The  court  instructs  the  jur\\  that  before  they  can  convict  the 
defendant  in  this  case,  it  must  appear,  from  the  evidence,  beyond 
a  reasonable  doubt,  that  the  defendant,  and  not  somebody  else, 
committed  the  offense  charged  in  the  indictment.  It  is  not  suffi- 
cient that  the  evidence  shows  that  the  defendant  or  somebody 
else  committed  the  crime,  nor  that  the  probabilities  are  that  the 
defendant  and  not  somebody  else  connnitted  the  crime,  unless 
those  probabilities  are  so  strong  as  to  remove  all  reasonable 
doubt  as  to  whether  the  defendant  or  some  one  else  is  the  sruiltv 
party.     Lyons  vs.  The  People^  'o^  111.,  271. 

If  the  jury  believe,  from  the  evidence,  that  the  {three)  men 
testiiied  about  by  the  witnesses,  A.  and  B.,  were  other  and  dif- 
ferent men  than  the  defendants,  and  if  the  jury  further  believe, 
from  the  evidence,  that  the  evidence  points  as  strongly  to  the 
conclusion  of  their  guilt  as  to  that  of  the  defendants,  then  the 
jury  should  find  the  defendants  not  guilty. 

If,  froui  a  consideration  of  all  the  evidence  in  this  case,  the 
jury  entertain  a  reasonable  doubt  as  to  whether  the  offense 
charged  was  committed  by  the  defendants  or  by  other  persons, 
the  jury  should  acquit;  and  the  same  rule  applies  as  to  the  ques- 
tion of  guilt  or  {"nnocence  of  each  defendant;  that  is  to  say,  that 
if  the  evidence  leaves  the  jurors  in  reas()iud>le  doubt  as  to  anv 
one  defendant,  such  defendant  should  be  ac<piitted. 

The  jury  are  instructed,  that  it  is  a  rule  of  law  that  althou<i:h 
it  may  be  positively  proved  that  one  of  two  or  more  persons 
committed  a  ci-ime,  yet  if  there  is  any  reasonable  doubt  as  to 
which  is  the  guilty  party,  all  must  be  ac(piitted.  Camphdl  vs. 
The  People,  16  111.,  1. 

\See  Murder. \ 

Proof  by  Coiiiparison  of  Tracks. — Tlie  jury  are  further  instructed 
that  while  it  is  competent  for  the  peojile,  as  one  means  of  i«lcM- 
tification  of  the  prisoners,  to  prove  that  the  foot  marks  made  bv 
the  burglars  correspond  with  the  boots  or  shoes  worn  bv  defend- 


IN    CKIMINAL    CASES.  499 

ants,  still  it  is  exceedingly  important,  in  order  to  guard  against 
mistake,  that  the  greatest  accuracy  in  the  comparison  should  be 
secured  and  proved  upon  the  trial. 

That  proof  simply  that  boots  or  shoes  put  into  or  upon  a  ti-ack 
fit  the  track,  is  not  conclusive  evidence  that  such  boots  or  shoes 
made  such  track. 

That  in  passing  upon  the  weight  of  evidence  as  to  comparison 
of  boots  and  tracks,  the  jury  should  consider  all  the  evidence  as 
to  the  circumstances  and  mode  under  which  a  comparison  has 
been  made;  and  unless  it  appears  that  such  comparison  was 
made  in  such  way  as  to  establish,  beyond  reasonable  doubt,  that 
the  boots  or  shoes  did  make  the  track,  then  evidence  as  to  such 
comparison,  if  unsupported  by  other  evidence  connecting  the 
prisoners  therewith,  would  be  entitled  to  but  little  weight. 

ALIBI. 

Proof  of  an  Alibi. — One  of  the  defenses  interposed  by  the  de- 
fendants, in  this  case,  is  what  is  known,  in  law,  as  an  alibi,  that 
is,  that  the  defendants  were  at  another  place  at  the  time  of  the 
commission  of  the  crime,  and  the  court  instructs  the  jury,  that 
such  a  defense  is  as  proper  and  as  legitimate,  if  proved,  as  any 
other,  and  all  the  evidence  bearing  upon  that  point  should  l)e 
carefully  considered  by  the  jury;  and  if  in  view  of  all  the  evi- 
dence, the  jury  have  any  reasonable  doubt  as  to  whether  the 
defendants  were  in  some  other  place  when  the  crime  was  com- 
mitted, they  should  give  the  defendants  the  benefit  of  the  doubt, 
and  find  them  not  guilty. 

Alibi  Need  not  be  Proved  Beyond  a  Reasonable  Doubt. — As  regards 
the  defense  of  an  alibi,  the  jury  are  instructed,  that  the  defend- 
ant is  not  required  to  prove  that  defense  bej'ond  a  reasonable 
doubt  to  entitle  him  to  an  acquittal;  it  is  sufficient  if  the  evi- 
dence upon  that  point  raises  a  reasonable  doubt  of  his  presence 
at  the  time  and  place  of  the  commission  of  the  crime  charged. 
State  vs.  Harden,  46  la.,  623;  State  vs.  Jaynes,  78  N.  C,  504; 
Howard  vs.  The  State,  50  Ind.,  190. 

The  court  further  instructs  the  jury,  that  if  they  believe,  from 
the  evidence,  that  on  the  night  of  the  alleged  bui-glary,  and  at 


500  INSTRUCT  ION'S 

the  hour  tliat  tlie  crime  was  committed,  the  defeiidants,  H.  and 
R.,  Averi"  at  the  residence  of  the  said  II.,  as  testitied  to  by  some 
of  the  (U'fcii(huits'  witnesses,  and  were  not  pi'cscnt  at  the  scene 
of  such  hnrghiry  at  the  time  of  its  commission,  tlien  you  must 
ac(piit  those  defendants,  unless  it  has  been  proved,  l)eyond  a 
reasonable  doul)t,  that  they,  in  some  mannci-,  aided,  assistecl, 
advised  or  encouraged  the  commission  of  said  ciame  before  it 
was  committed. 

That  if  you  entertain  any  reasonable  doubt  as  to  whether  or 
not  the  defendants,  II.  and  U.,  were  at  II. 's  residence  or  at  the 
scene  of  the  burglary,  at  the  time  it  was  committed,  then  it  is 
your  sworn  duty,  nnder  the  law,  to  give  the  benefit  of  such 
doubt  to  those  defendants,  aiul  acquit  them,  uidess,  etc. 

If  the  jury  believe,  from  the  evidence,  that  the  defendant, 
\V.,  on  the  night  and  at  the  hour  of  the  commission  of  the 
alleged  burglary,  was  at  his  own  home,  and  not  present  at  the 
place  of  the  said  bui-ghiry,  then  you  should  tind  the  said  W.  not 
guilty,  unless  you  are  satisfied,  from  the  evidence,  beyond  a 
reasonable  doubt,  that  he  aided,  etc. 

The  jury  are  instructed,  as  a  nuitter  of  law,  that  if  tiiey  en- 
tertain any  reascmable  doubt,  after  a  careful  aiul  candid  consid- 
eration of  all  the  evidence  in  the  case,  whether  the  said  W.  was 
present  at  the  connnisslon  of  the  said  crime  or  at  his  own  home, 
with  his  wife  and  family,  then  it  is  a  rule  of  law,  inllexible  in 
its  ojjeration,  that  the  jury  must  give  the  benefit  of  tiie  doubt  to 
the  prisoner,  and  render  a  verdict  of  accpiittal  as  to  him,  unless, 
etc.  {as  ahove), 

PROOF    OF    GOOD    CnARACTER, 

Good  Character  Presumed. — The  court  instructs  the  jury,  that  the 
character  of  an  accused  person  is,  in  law,  presumed  to  be  good 
until  the  contrary  appears  from  the  evidence,  and  he  is  under  no 
obligation  to  prove  a  good  character  until  his  character  is  in 
some  manner  attacked,  aiul  the  jui-y  will  not  be  justified  in  draw- 
ing any  inference  unfavorable  to  the  defendant,  from  the  fact 
that  he  has  offered  lu)  proof  as  to  good  character  iu  this  case. 

Former  Good  Character  Proved. — Tf  the  jury  believe,  from  the 
evidence,  that  while  the  defendant,  A.,  resided  in  the  town  of 


IN    CRIMINAL    CASES.  501 

C,  his  general  reputation  and  character  for  honesty  were  good, 
then  the  presumption  of  law  is,  in  the  absence  of  proof  to  the 
contrary,  that  that  reputation  has  continued  good  down  to  the 
time  of  the  commission  of  the  offense  charged  in  this  indict- 
ment. And  the  said  defendant  was  under  no  obligation  to  intro- 
duce further  proof  on  the  point  of  good  character,  unless  he  saw 
lit  so  to  do,  and  his  omission  to  introduce  further  testimony 
upon  that  point  should  not  be  regarded  by  the  jury  as  a  cir- 
cumstance against  him,  or  as  tending,  in  any  degree,  to  prove 
his  guilt  in  this  case. 

Omission  to  Prove  Good  Character. — That  the  law  not  only  pre- 
sumes that  every  person  is  innocent  until  he  is  proven  to  be 
guilty,  but  the  law  also  presumes  that  a  person  has  a  good  char- 
acter and  reputation  for  (Jionesty)  until  the  contrary  is  shown  by 
the  evidence;  and  the  jury  have  no  right  to  consider  the  omis- 
sion on  the  part  of  the  defendants,  R.  and  H.,  to  introduce  evi- 
dence of  good  character  as  a  circumstance  against  them,  or  as 
tending  to  show  their  guilt  in  this  case.  1  Whai-ton  on  Crim. 
Law,  §  637;  State  vs.  Tozier,  49  Me.,  404;  People  vs.  Bod'me, 
1  Denio.,  281. 

Proof  of  (jood  Character— Effect  of. — Tlie  jury  are  instructed,  that 
in  all  criminal  trials  where  the  prosecution  depends  upon  cir- 
cumstantial evidence  alone,  which  is  not  conclusive  in  its  char- 
acter, previous  good  character  on  the  part  of  the  accused,  if 
proved,  is  entitled  to  great  weight  in  favor  of  innocence. 

That  upon  a  prosecution  for  burglary  or  larceny,  proof  of 
previous  good  character  for  honesty,  on  the  part  of  the  party 
charged,  is  proper  evidence  to  be  considered  by  the  jury,  in  con- 
nection with  all  the  other  evidence,  in  determining  the  guilt  or 
innocence  of  the  party  charged;  and  if  the  case  is  otherwise 
doubtful,  satisfactory  proof  of  previous  good  character  will 
amount  to  complete  defense. 

That  where  there  is  a  serious  conflict  in  the  testimony  as  to 
the  commission  of  an  offense  like  tliat  charged  in  this  case,  evi- 
dence of  the  previous  good  character  of  the  defendant  as  to 
such  offenses  should  be  considered  by  the  jury,  in  connection 
v^'ith  all  the  other  evidence  given  on  the  trial,  in  determining 


502  INSTRUCTIONS 

whether  the  defendant  would  be  likely  to  coimnit,  and  diil  com- 
mit, the  offense  in  question.     Kistler  vs.  State,  5-i  Ind,,  400. 

That  in  doubtful  cases,  evidence  of  good  character  is  conclusive 
in  favor  of  the  party  accused ;  and  if,  from  the  evidence,  you 
find  that  the  facts  and  circMimstances  pi'oved  and  relied  upon 
to  establish  the  defendant's  guilt  are  in  doubt,  or  that  the 
intent  of  the  defendant  to  commit  the  crime  is  in  doubt,  then, 
if  the  prisoner  has,  by  evidence,  satisfied  you  that  he  was  a  man 
of  good  character  up  to  the  time  of  the  alleged  offense  in  this 
case,  the  presumption  of  law  is,  that  the  alleged  crime  is  so 
inconsistent  with  the  former  life  and  character  of  the  defendant 
that  he  could  not  have  intended  to  commit  such  a  crime,  and  it 
would  be  your  duty  to  give  the  defendant  the  benefit  of  that 
presumption,  and  acquit  him. 

Proof  of  Good  Character  Always  Proper — The  court  instructs  the 
jury,  that  evidence  of  previous  good  character  is  competent  evi- 
dence in  favor  of  a  party  accused,  as  tending  to  show  that  he 
would  not  be  likely  to  connnit  the  crime  alleged  against  him. 

And,  in  this  case,  if  the  jury  believe,  from  the  evidence,  that 
prior  to  the  connnission  of  the  alleged  crinu\  the  defendant  had 
always  borne  a  good  cliaracter  (for  honest  ij)  among  his  aeipuiint- 
ances  and  in  the  neighborhood  where  he  lived,  then  this  is  a  fact 
proper  to  be  considered  by  the  jury,  with  all  the  other  evidence 
in  the  case,  in  determining  the  question  whether  the  witnesses 
who  have  testified  to  facts  tending  to  criminate  him  have  been 
mistaken  or  have  testified  falsely  or  truthfully ;  and  if  after  a 
careful  consideration  of  all  the  evidence  in  the  case,  inchiding 
that  bearing  upon  his  previous  good  chai-actcr,  the  jury  enter- 
tain any  reasonable  doubt  of  the  defendant's  guilt,  then  it  is 
their  sworn  duty  to  acquit  him,  Lee  vs.  State,  2  Tex.  App.,  338; 
3  Greenl.  Ev.,  §  25-2G;  1  Whart.  Vrnn.  Law,  §  636,  643. 

Guilt  Proved  Notwithstandiiif?  Proof  of  Good  Character. — If  the  jury 

believe,  from  the  evidence,  that  the  defendant  committed  the  crime 
in  question,  in  maimer  and  form  as  charged  in  the  indictment, 
it  will  be  your  sworn  duty,  as  jm'oi's,  to  find  tlie  defendant  guilty, 
even  though  the  evidence  may  satisfy  your  minds  that  the  de- 
fendant, previous  to  the  commission  of  the  alleged  crime,  had 
sustained  a  good  reputation  and  character  for  honesty. 


IN    CKIillNAL    CASES.  503 


CONSPIRACY. 

How  Defined. — The  court  instructs  the  jury,  that  a  conspiracy  is 
a  combination  of  two  or  more  persons  by  some  concert  of  action 
to  accomplish  some  criminal  or  unlawful  purpose,  or  some  pur- 
pose not,  in  itself,  criminal  or  unlawful,  by  criminal  or  unlawful 
means.  State  xs.  Botvle//,  12  Conn.,  101;  Smith  vs.  People. 
25  111.,  17;  Aldennaii  vs.  People,  4  Mich.,  414. 

How  Proved  —  Usually  by  Circumstances. — That  the  evidence  in 
proof  of  a  conspiracy  will,  in  general,  be  circumstantial;  and,  al- 
though the  common  design  is  the  essence  of  the  charge,  it  is  not 
necessary  to  prove  that  the  defendants  came  together  and  actu- 
ally agreed,  in  terms,  to  have  that  design  and  to  pursue  it  by 
common  means.     3  Greenlf.  Evi.  §  93. 

If  the  jury,  from  the  acts  of  the  parties,  as  proven,  and 
from  all  the  facts  and  circumstances  in  evidence,  believe,  be- 
yond a  reasonable  doubt,  that  the  defendants  did  pursue  the 
common  object  of,  etc.,  as  charged  in  the  indictment,  and  by  the 
same  means,  one  performing  one  part,  and  another,  another  part, 
so  as  to  accomplish  the  common  object,  then  the  jury  would  be 
justified  in  the  couclusion  that  the  defendants  were  engaged  in  a 
conspiracy  to  effect  that  object.  Koscoe's  Crim.  Ev.,  416 ;  Smith 
vs.  The  People,  25  111.,  1. 

The  jury  are  instructed,  that  while  it  is  necessary,  in  order 
to  establish  a  conspiracy,  to  prove  a  combination  of  two  or  more 
persons  by  concerted  action  to  accomplish  the  criminal  or  un- 
lawful purp(;se  alleged  in  the  indictment,  yet  it  is  not  necessary 
to  prove  that  the  parties  ever  came  together  and  entered  into  any 
formal  agreement  or  arrangement  between  themselves  to  effect 
such  purjiose;  the  combination,  or  common  design,  or  object  may 
be  regarded  as  proved,  if  the  jury  believe,  from  the  evidence, 
lie^'ond  a  reasonable  doubt,  that  the  parties  charged  were  actually 
pursuing,  in  concert,  the  unlawful  object  stated  in  the  indict- 
ment, whether  acting  separately  or  together,  by  common  or  dif- 
ferent means;  providing,  all  were  leading  to  the  same  unlawful 
result.      U.  S.  vs.  Cole,  5  McLane,  513. 


504  INSTRUCTIONS 

yyiui  are  Deemed  (iiiilty. — The;  jury  are  instructed,  as  a  matter 
of  law.  that  all  who  take  ])art  in  a  conspiracy  after  it  is  foriueil, 
and  while  it  is  in  execution,  and  all  who,  with  knowliMli^e  of  the 
facts,  concur  in  the  plans  oriu'inallv  formed  and  aid  in  executin'r 
them,  arc  fellow-conspirators.  Their  concurrence,  without  proof 
of  an  ai;;i-eement  to  concur,  is  concdusive  against  them.  They 
•  oiiinut  the  offense  when  they  become  partners  to  the  transac- 
tion, or  further  the  original  plan.     People  vs.  Mather^  4  Wend., 

Tliough  the  jury  may  believe,  from  the  evidence,  that  when 
the  parties  came  together  upon  the  occasion  in  question,  they 
met  for  sonie  lawful  pur})ose,  yet,  if  the  jury  further  be- 
lieve, from  the  evidence,  beyond  a  reasonable  doubt,  that  they 
then  joined  in  attempting  to  accomplish  the  unlawful  purpose 
stated  in  the  indictment,  in  manner  and  form  as  therein  alleged, 
then  this  would  be  suffi(;ient  evidence  of  a  conspiracy  to  accom- 
plish such  purpose,  and  it  is  unnecessary  to  prove  any  previous 
])lau  or  understanding  to  that  eifect  by  the  parties.  Lowcnj  vs. 
State,  30  Tex.  402;  3  Greenlf.  Evi.,  §  93. 

No  Act  Xecessarj. — To  constitute  the  crime  of  conspiracy  it  is 
not  necessary  that  the  conspirators  should  succeed  in  their  de- 
signs. Noi-  is  any  overt  act  necessary  to  complete  the  crime; 
the  offense  is  complete  when  the  confederacy  to  j)ursue  the  com- 
mon purpose  is  made.  State  vs.  Ripleu,  31  Me.,  3SG;  Alder- 
man vs.  The  People,  4  Mich.,  414;  State  vs.  Pitlle,  12  Minn., 
104;  State  vs.  Straw,  42  N.  II.,  393. 

If  the  jury  believe,  from  the  evidence,  beyond  a  reasonable 
<loulit.  that  on  or  about,  etc.,  at  and  within  this  county,  any  two 
or  moi-e  of  the  defendants  did.  unlawfully,  and  in  concert,  make 
an  attack  with  force  and  violence,  upon  the  person  of  the 
witness,  A.  15.,  cithci'with  oi-  without  a  connnon  cause  of  quar- 
rel, then  the  jury  should  lind  such  defendants  guilty. 

Some  Overt  Aet  Necessary.  — (/>'.'/  Stutuii.) — The  court  instructs  the 
jury,  that  to  constit  utc  tin;  ci'ime  of  conspiracy,  it  is  not  necessary 
that  the  conspiratoi-s  should  succeed  in  their  designs;  it  is  enough 
ii  the  common  design  was  formed,  in  manner  and  form  as  charged 
in  the  indictment,  and  that  any  act  was  done  in  furtherance  of 


IN    CRIMINAL    CASES.  505 

such  design  by  any  one  of  the  conspirators.  If  the  conspiracy 
charged  in  the  indictment,  has  been  proved  to  the  satisfaction  of 
the  jury,  beyond  a  reasonable  doubt,  then  the  act  of  any  one  of  the 
conspirators,  in  furtherance  of  the  common  design,  if  proved, 
will  be  reirarded  as  the  act  of  all.  State  vs.  Norton,  23  N.  J. 
L.,  33 ;  Cohi.  vs.  Crowninshield,  10  Pick,  497. 

Combination  Must  be  Proved. — The  jury  are  instructed,  that  in 
order  to  warrant  a  conviction  in  this  case,  the  prosecution  must 
prove,  beyond  a  reasonable  doubt,  that  the  defendants,  or  some 
two  of  them  are  guilty  of  the  crime  charged  in  the  indictment. 

That  to  authorize  a  conviction  in  this  case,  it  is  not  enough 
for  the  prosecution  to  prove  that  an  assault  was  committed ;  it 
must  further  appear,  from  the  evidence,  beyond  a  reasonable 
doubt,  that  at  least  two  of  the  defendants  had  formed  a  common 
design  to  assault  the  said  A.  B.,  or  else  took  part  in  such  assault, 
or  were  present,  aiding,  abetting,  advising  or  encouraging  the 
same,  otherwise  the  jury  should  find  all  the  defendants  not  guilty. 

Although  the  jury  may  believe,  from  the  evidence,  that  the 
defendant,  A.,  struck  the  prosecuting  witness  at  the  time  in 
question,  still,  unless  the  jury  further  believe,  from  the  evidence, 
beyond  a  reasonable  doubt,  that  one  of  the  other  defendants  was 
present,  aiding,  abetting,  advising  or  encouraging  such  striking, 
the  striking  alone  would  not  constitute  a  conspiracy. 

Although  the  jury  may  believe,  from  the  evidence,  beyond  a 
reasonable  doubt,  that  one  of  the  defendants  threw  a  stone  atul 
struck  the  prosecuting  witness,  still,  that  of  itself,  would  not 
authorize  a  conviction  in  this  case.  To  authorize  a  conviction 
for  conspiracy,  it  should  further  appear,  from  the  evidence,  to 
the  exclusion  of  every  reasonable  doul)t,  that  one  or  moi-e  of  the 
other  defendants  took  part  in  the  difficulty,  or  in  some  manner 
aided,  abetted,  advised  or  encouraged  the  same,  and  that  this  was 
done  in  pursuance  of  a  common  design. 

That  a  common  design,  or  purpose,  by  two  or  more  persons,  is 
the  essence  of  the  charge  of  conspiracy,  and  this  common  de- 
sign must  be  proved  in  order  to  wai-rant  a  conviction,  either  by 
direct  evidence  or  by  the  proof  of  such  circumstances  as  natu- 
]-ally  tend  to  prove  it,  and  sufficient,  in  themselves,  to  satisfy  the 
jury  of  the  existence  of  such  common  design  beyond  a  reasona- 
ble doubt. 


oOG  INSTKUCTIONS 

Although  the  jury  may  believe,  from  the  evidence,  beyond  a 
reasonable  doubt,  that,  upon  the  occasion  in  question,  there  was 
an  assault  and  battery  committed  upon  the  said  A.  13.,  by  two  or 
more  of  the  defendants,  still,  this  alone  would  not  be  sufficient 
to  wan-ant  a  conviction  for  the  crime  of  conspiracy;  provided, 
the  jury  believe,  from  the  evidence,  that  each  (jf  the  parties  so 
assaulting  acted  upon  his  own  motion  and  without  any  reference 
to  the  acts  or  intention  of  the  other  defendants,  and  without  any 
concert  of  action  to  accomplish  a  common  design  or  purpose. 


HOMICIDE. 

Homicide  Generally. — The  jury  are  instructed,  that  the  killing  of 
a  human  being  may  be  either  justifiable,  excusable,  or  felonious 
and  criminal.  The  killing  is  justifiable  when  done  in  the  neces- 
saiy,  or  apparently  necessary,  defense  of  one's  self  or  family  from 
great  bodily  harm,  attempted  to  be  committed  by  force.  It  is 
excusable  when  one,  in  doing  a  lawful  act,  by  mere  accident 
unfortunately  kills  another.  Such  killing,  when  it  is  neither 
justifiable  nor  excusable  is  felonious  and  criminal,  and  it  may  be 
either  murder  or  manslaughter. 

MURDER    GENERALLY. 

Murder  Dofinod. — The  crime  of  murder  is  committed  when  a 
person  of  sound  memory  and  discretion  unlawfully  kills  any 
reasonable  creature  in  being,  under  the  peace  of  the  state,  with 
malice  aforethought,  either  expressed  or  implied.  liuss.  on 
Cri.,  482;  Wart.  Am.  Crim.  Law.,  35G;  3  Grcenlf.  Evi.,  §  130. 

Inyoluntary  Murder. — AVlien  the  involuntary  killing  of  a  human 
being  happens  in  the  commission  of  an  unlawful  act,  which  in 
its  consequences  tends  naturally  to  destroy  life,  or  is  committed 
in  the  prosecution  of  any  felonious  intent,  the  offense  is  deemed 
and  adjudged  to  be  murder. 

Express  Malice. — Express  malice  is  that  deliberate  intention 
unlawfully  to  take  away  the  life  of  a  fellow-creature,  which  is 
manifested  by  external  circumstances  capable  of  proof. 


IN    CEIMIXAL    CASES.  507 

Implied  Malice. — Malice  is  implied  when  no  considerable  prov- 
ocation appears,  or  when  all   the  circumstances  of  the  killing 
show  an  abandoned  and  malignant  heart. 
[See  Malice  and  Intent.] 

Presmnptioii  from  Killing. — The  jury  are  instructed,  that  if  the 
killing  of  the  person  mentioned  in  the  indictment  is  satisfactorily 
shown  by  the  evidence,  beyond  all  reasonable  doubt,  to  htive 
been  the  act  of  the  defendants,  or  either  of  them,  then  the  law 
pronounces  such  killing  murder,  unless  it  appears,  from  the  evi- 
dence, that  circumstances  existed  excusing  or  justifying  the  act, 
or  mitigating  it,  so  as  to  make  it  manslaughter,  as  explained  in 
these  instructions. 

Involiiutary  KUling-Act  Naturally  Tending. — The  court  further  in- 
structs the  jury,  that  when  an  unlawful,  unintentional  killing  of 
a  human  being  happens  in  the  commission  of  an  unlawful  act, 
which  in  its  consequences  naturally  tends  to  destroy  the  life  of  a 
human  being,  the  offense  will  be  murder,  and  not  manslaughter. 
2  Whar.  on  Crim.  Law,  967. 

Involuntary  Killing— In  the  Commission  of  a  Crime. — The  court  fur- 
ther instructs  the  jury,  that  when  an  unlawful  unintentional 
killing  of  a  human  being  happens,  or  is  committed  in  the  jiros- 
ecution  of  any  felonious  intent,  as  explained  in  these  instruc- 
tions, the  killing  will  be  murder  and  not  manslaughter. 

If  the  jury  believe,  from  the  evidence,  beyond  a  reasonable 
doubt,  that  at  the  time  of  the  alleged  killing  the  defendants  had 
entered  the  house  of  the  deceased,  for  the  purpose  of  stealing 
and  carrying  away  any  article  of  personal  property  therein,  and 
that,  in  the  prosecution  of  that  purpose,  or  in  his  efforts  to  es- 
cape from  the  house  with  such  property,  the  defendant  struck 
the  deceased  and  thereby  caused  his  death,  then  such  killing 
would  be  murder  and  not  manslaughter,  and  it  would  be  wholly 
immaterial  whether  such  killing  was  intentional  or  not.  2  Bish. 
on  Crim.  Law,  720. 

If  the  jury  find,  from  the  evidence,  beyond  a  reasonable 
doubt,  that  at  the  time  of  the  alleged  killing,  the  defendants,  or 
either  of  them,  made  an  attack  upon  the  deceased  for  tlie  pur- 


508  INSTRUCTIONS 

pose  or  witli  the  intent  uf  fek)nit)usly  taking'  from  him.  l)y  force, 
and  against  his  will,  his  money,  watch  or  other  articles  of  per- 
sonal i)ropcrty,  and  that  in  the  prosecntion  of  that  purpose  either 
one  of  the  defendants  struck  the  deceased,  and  thereby  caused 
his  death,  in  manner  and  form  as  charged  in  the  indictment,  then 
such  killing  would  be  murder,  not  only  on  the  part  of  the  one 
wdio  struck  the  blow,  but  also  on  the  part  of  any  one  or  more  of 
the  defendants  who  were  present,  aiding  or  assisting  in  the  origi- 
nal attempt  to  take  the  property  of  the  deceased  by  force  or 
against  his  will;  if  the  jury  tind,  from  the  evidence,  beyond  a 
r(3asonable  doubt,  that  either  of  the  other  defendants  was  so 
present,  aiding  and  abetting;  and  in  such  case  it  would  be  wholly 
immaterial  whether  the  blow  was  struck  with  the  intention  of 
taking  the  life  of  the  deceased,  or  only  of  disabling  him. 
\See  Aiders  and  Abettors.] 

Blow  with  Deadly  Weapon. — If  the  jury  believe,  from  the  evi- 
dence, beyond  a  reasonable  doubt,  that  the  defendant  killed  the 
deceased  by  striking  him  on  the  head  with  a  stick,  that  the  size 
of  the  stick  was  such,  that  in  the  hands  of  a  man  of  ordinary 
strength,  striking  with  it  a  violent  blow  on  the  head,  it  was  a 
dangerous  weapon,  and  that  the  natural  consequence  of  the  blow 
struck  by  the  defendant  upon  the  head  of  the  deceased  was  to 
destroy  his  life,  and  that  his  death  was  caused  by  such  blow,  then 
the  jury  should  find  the  defendant  guilty  of  murder;  provided, 
that  they  further  believe,  from  the  evidence,  beyond  a  reasona- 
ble doubt,  that  the  blow  was  stru&k  with  malice  aforethought,  or 
when  no  considerable  provocation  appeared.  2  "Whart.  on  Grim. 
Law,  971. 

If  the  jury  believe,  from  the  evidence,  beyond  a  reasonable 
doubt,  that  the  defendant  struck  the  deceased,  and  knocked  him 
down,  in  manner  and  form  as  charged  in  the  indictment,  wil- 
fully and  intentionally,  and  without  legal  excuse  or  justification, 
as  the  same  is  explained  in  these  instructions,  and  that  the  de- 
ceased died  in  c(jnse(pience  of  such  striking  and  knocking  down, 
in  manner  and  form  as  chai-ged  in  the  indictment,  then  the  jury 
should  find  the  defendant  guilty. 

If  the  jury  believe,  from  the  evidence,  that  the  stick  in  ques- 
tion, was  so  large  a  one  that  the  necessary  consequences  of  a 


IN    CRIMINAL    CASES. 


509 


violent  blow  with  it,  on  the  head,  by  a  man  of  ordinary  strength, 
would  be  to  destroy  human  life,  then  the  law  regards  such  a 
stick,  when  used  in  striking  a  fellow-creature  upon  the  head,  as 
a  deadly  weapon ;  and  if  you  further  believe,  from  the  evidence, 
beyond  a  reasonable  doubt,  that  the  defendant  struck  the  de- 
ceased with  such  a  stick,  upon  the  head,  with  malice  afore- 
thought as  explained  in  these  instructions,  and  thereby  caused 
liis  death,  in  manner  and  form  as  charged  in  the  indictment,  then 
the  defendant  is  guilty  of  murder. 

The  court  instructs  the  jury,  that  if  they  believe,  from  the 
evidence,  beyond  a  reasonable  doubt,  that  the  defendant  struck 
the  deceased  on  the  head  with  a  stick,  and  that  the  stick  was  a 
large  one,  and  that  the  necessary  consequence  of  a  blow  with  it 
in  the  hands  of  an  ordinary  man,  when  striking  a  human  being 
on  the  head,  would  be  to  destroy  human  life,  then  the  law  con- 
siders such  a  stick  to  be  a  deadly  weapon. 

And,  if  the  jury  further  believe,  from  the  evidence,  beyond  a 
reasonable  doubt,  that  the  defendant  struck  the  deceased  on  the 
head  with  such  a  stick,-  that  the  violence  of  the  blow  knocked 
him  down  and  produced  insensibility,  speechlessness  and  other 
symptoms  of  a  fatal  character,  and  that,  suffering  great  agony, 

he  died  within  the  space  of or  thereabouts,  after  the  blow 

was  given,  then  these  are  circumstances  which  the  jury  should  take 
into  consideration,  together  with  all  the  other  evidence  in  the 
case,  in  determining  whether  the  blow  was  what  occasioned  the 
death  of  the  deceased.     Davis  vs.  The  People,  19  111.,  74. 

Blow  with  Deadly  Weapon— No  Considerable  Provocation,  Etc. — If  the 

jury  believe,  from  the  evidence,  beyond  a  reasonable  doubt,  tliat 
on  or  about,  etc.,  the  defendant  and  deceased  met  at,  etc.,  within 
the  county,  etc.,  and  a  quarrel  ensued  between  them,  and  that 
the  defendant  then  and  there  struck  the  deceased  a  blow  on  the 
head  with  a  dangerous  and  deadly  weapon,  as  charged  in  the  in- 
dictment, without  any  considerable  provocation,  or  without  such 
provocation  as  was  apparently  sufficient  to  excite  sudden  and 
irresistible  passion,  and  that,  on  the  same  day,  deceased  died  from 
the  effect  of  that  blow,  then  the  jury  should  find  the  defendant 
guilty  of  murder,  unless  the  jury  further  find,  from  tJie  evidence, 
that  the  defendant  inflicted  the  fatal  blow  in  self-defense  to  save 


510  I N ? Tiir c  r I o X 8 

his  own  life,  or  to  prevent  <j::re;it  bodily  hiirin  to  liiiusclf,  and  nii- 
der  such  circinnstancestliat  a  reasonable  person  might  reasonably 
apprehend  danger  to  his  own  life,  or  great  Ixxlily  harm  to 
himself. 

Words  no  Siiflicient  Provocation. — The  court  instructs  llie  jury, 
that  no  provocation  by  words  oidy,  howisver  opprol)rious,  will 
mitigate  an  intentional  killing  so  as  to  reduce  tlie  killing  to  man- 
slaughter. 2  Whart.  Crim.  Law,  970;  Iia// v&.  State,  16  Ga., 
223;  Rapp  x&.  State,  14  15.  Monroe,  494:;  State  vs.  Starr,  SH 
Mo.,  2T<i;  Jfartm  vs.  People,  30  Wis.,  21*). 

And,  although  the  jury  may  believe,  fn)m  the  evidence,  that 
insulting  and  opprobrious  e]nthets  were  used  by  the  deceased  to 
the  defendant,  yet,  if  the  jury  fui-ther  believe,  fi-om  the  evi- 
dence, bevond  a  reasonable  doubt,  that  the  defendant  immedi- 
ately revenged  himself  by  the  use  of  a  dauijei-ous  and  deadly 
weapon,  in  a  manner  likely  to  cause  the  death  of  the  deceased, 
and  did,  thereby,  cause  his  death,  then  tlie  defendant  is  guilty 
of  murder,  and  the  jury  should  so  find  by  their  verdict. 

Death  I)y  Shootinc:  —  Party  Intends  the  Natnral  Results  of  his  Acts.— 

The  court  instructs  the  jury,  that  in  criminal  law  a  person  is 
always  held  to  intend  the  natural  and  probable  results  of  his 
own  acts,  unless  the  contrary  is  made  to  appear  by  the  evidence; 
and  if  one  use  a  deadly  weapon,  like  a  gun  or  pistol,  and  shoot 
at  another  intentionally,  and  such  other  is  wounded,  and,  in  con- 
secpience  thereof,  dies,  the  person  shooting  is  held  responsible 
for  tlie  death,  and  if  the  shooting  is  neither  justifiable  nor  ex- 
cusable in  law,  he  is  liable  to  be  punished  either  for  murder  or 
for  manslaughter. 

Cause  of  the  Death  Must  bo  Proved. — The  court  instructs  tlu'  jury, 
that  it  is  incumbent  upon  the  peoi)le  to  show  by  proof,  beyond 
a  reasonable  doubt,  that  the  deceased  came  to  his  death  by  reaso7i 
of  the  injurv  inflicted  on  him  by  the  pistol  ball  in  (piestion.  The 
j)eople  must  show,  not  that  such  injury  wa^^  j)robably  the  cau>c 
of  the  death,  but  that  it  was  the  efficient  and  immediate  cause 
of  death;  and  the  evidence  must  establish  this  fact  beyond  any 
reasonable  doubt,  and  if  this  has  not  been  done  the  jury  should 
find  tlie  defendant  not  iruiltv. 


IN    CRIMINAL    CASES.  511 

Wound  not  Necessarily  Fatal  — Death  from  Neglect. — The    law    is, 

that  if  one  unlawfully  inflicts  upon  another  a  wound  which  is 
not  in  its  nature  necessarily  mortal,  but  which  might  be  cured 
by  proper  care  and  surgical  treatment,  and  the  person  injured 
neglects  to  procure  such  care  or  refuses  to  receive  such  surgical 
treatment,  and  he  die  of  the  wound  owing  to  such  want  of  care 
and  treatment,  this  will  not  excuse  the  person  inflicting  the 
wound;  and  if,  in  such  case,  the  jury  further  believe,  from  the 
evidence,  beyond  a  reasonable  doubt,  that  the  injuiy  w^as  inflicted 
by  accused  with  malice  aforethought,  as  explained  in  these  in- 
structions, and  that  the  deceased  died  from  such  wounds,  then 
the  jury  should  find  the  accused  guilty  of  murder.  3  Greenl. 
Ev.,  §  139;  2  Bishop  Grim.  Law,  §  679-680. 

If  the  jury  believe,  from  the  evidence,  beyond  a  reasonable 
doubt,  that  the  defendant,  with  malice  aforethought,  shot  at  and 
hit  the  deceased  with  the  pistol  ball,  and  thereby  inflicted  upon 
him  a  wound  of  which  he  afterw^ards  died,  in  maimer  and  form 
as  charged  in  the  indictment,  then  the  defendant  is  guilty  of 
murder,  although  the  jury  may  further  believe,  from  the  evi- 
dence, that  the  wound  was  not  necessarily  mortal,  and  that  with 
proper  care  and  treatment  the  deceased  might  have  recovered. 
It  is  sufficient,  in  such  cases,  to  warrant  a  conviction  of  the  de- 
fendant, if  the  jury  And,  from  the  evidence,  beyond  a  reasonable 
doubt,  that  the  deceased  died  from  the  effect  of  the  wound  and 
not  from  his  own  misconduct  or  positive  ill-treatment  of  his 
physician  or  others. 

MURDER FIRST    AND    SECOND    DEGREE. 

Murder  Defined. — The  court  instructs  the  jury,  that  in  this  state 
whoever  kills  a  human  being  with  malice  aforethought  is  guilty 
of  murder. 

Of  the  First  Degree. — The  jury  are  further  instructed,  that  all 
murder  which  is  perpetrated  by  means  of  poisoning,  or  lying  in 
wait,  or  any  other  kind  of  wilful,  deliberate  and  premeditated 
killing  (or  which  is  committed  in  the  perpetration  or  attempt  to 
perpetrate  any  arson,  rape,  robbery,  mayhem  or  burglary)  is 
murder  of  the  first  degree. 


512  INSTRUCTIONS 

Of  llu'  Spcond  Degree. — The  jury  are  fiirthor  instructec'l,  tliat 
whoever  commits  murder  otherwise  tliau  by  means  of  poison  or 
lying  in  wait,  or  otlier  kind  of  wilful,  deliberate  and  premedi- 
tated killing  (or  which  is  committed,  etc.),  is  guilty  of  murder  in 
the  second  degree. 

Elements  of  Murder  in  the  First  Degree. — The  court  instructs  the 
jury,  that  under  our  statute,  to  constitute  mui'dcr  in  the  hrst 
degree  the  jury  must  be  satisfied,  beyond  a  reas(jnable  doubt, 
from  the  evidence,  not  only  that  the  defendant,  M'ithout  any 
justifiable  cause  or  legal  excuse,  as  explained  in  these  instruc- 
tions, killed  the  deceased  in  manner  and  form  as  charged  in  the 
indictment,  but  they  must  further  believe,  from  the  evidence, 
]»eyond  any  reasonable  doubt,  that  at  the  time  the  defendant 
struck  the  fatal  l»lo\v  he  had  formed  in  his  mind  a  deliberate, 
wilful  and  premeditated  purpose  to  kill  the  deceased,  and  that 
he  struck  the  blow  with  the  intention  of  effecting  that  purpose. 

Although  the  jury  may  believe,  from  the  evidence,  beyond  a 
reasonable  doubt,  that  the  defendant,  without  justifiable  cause  or 
legal  excuse,  as  explained  in  these  instructions,  killed  the  de- 
ceased; still,  if  you  entertain  any  reasonable  doubt  whether  the 
killing  was  wilful,  deliberate  and  premeditated,  or  whether  the 
fatal  blow  was  struck  with  deliberate  intent  on  the  part  of  the 
defendant  that  the  blow  should  take  the  life  of  the  deceased,  then 
the  jury  should  only  find  the  defendant  guilty  of  murder  in  the 
second  degree. 

Killing  AVilfiiUy,  Etc. — That  under  our  statut(\  the  defendant  in 
this  case  cannot  be  found  <;uiltv  of  niunk'r  in  the  iirst  desi'ee 
unless  the  jury  are  satisfied,  from  the  evidence,  beyond  a  reason- 
able doubt,  not  only  that  the  defendant  is  guilty  of  feloniously 
killing  the  deceased,  but  it  must  further  appear,  from  the  evi- 
dence, be\'ond  a  reasonaltle  doubt,  tluit  such  killing  was  done 
wilfully,  deliberately  and  with  pi'cmeditation;  that  is,  that  it 
was  done  intentionally,  sanely  and  with  2)i'ior  deliberation.  And 
unlc>s  all  these  appear,  fi-om  the  ovidenc^e,  beyond  a  reasonable 
doubt,  the  jury  cannot  lawfully  find  the  defendant  guilty  of 
murder  in  the  first  degree.     Wharton's  Law  of  Homicide,  3G8. 


IN    CRIMINAL    CASES.  513 

No  Length  of  Deliberation,  Etc.,  Required. — The  jury  are  instructed, 
that  while  the  hiw  rec^uires,  iu  order  to  constitute  murder  of  tlie 
first  degree,  that  the  killing  shall  be  wilful,  deliberate  and  pre- 
meditated, still,  it  does  not  require  that  the  wilful  intent, 
premeditation  or  deliberation,  shall  exist  for  aii}^  length  of  time 
before  the  crime  is  committed;  it  is  sufficient  if  there  was  a 
design  and  determination  to  kill  distinctly  formed  in  the  mind 
at  any  moment  before  or  at  the  time  the  blow  is  struck  (or  pistol 
fired);  and  in  this  case,  if  the  jury  believe,  from  the  evidence, 
beyond  a  reasonable  doubt,  that  the  defendant  feloniously  struck 
and  killed  the  deceased,  as  charged  in  the  indictment,  and  that 
before  or  at  the  time  the  blow  was  struck  the  defendant  had 
formed  in  his  mind  a  wilful,  deliberate  and  premeditated  design 
or  purpose  to  take  the  life  of  the  deceased,  and  that  the  blow* 
was  struck  in  furtherance  of  that  design  or  purpose,  and  without 
any  justifiable  cause  or  legal  excuse  therefor,  as  explained  in 
these  instructions,  then  the  jury  should  find  the  defendant  guilty 
of  murder  of  the  first  degree.  2  Whar.  on  Crim.  Law,  948; 
Whar.  Law  of  Ilom.,  382;  2  Bish.  on  Crim.  Law,  §  750.  Con- 
tra— Finn  vs.  The  State,  5  Ind.,  400;  Fahnestock  vs.  The  State, 
23  Ind.,  231-263. 

To  constitute  murder  in  the  first  degree  there  must  have  been 
an  unlawful  killing  done,  purposely,  and  with  premeditated 
malice.  If  a  person  has  actually  formed  the  purpose  mali- 
ciously to  kill,  and  has  deliberated  and  premeditated  npon  it 
before  he  performs  the  act,  and  then  performs  it,  he  is  guilty  of 
murder  in  the  first  degree,  however  short  the  time  may  have 
been  between  the  purpose  and  its  execution.  It  is  not  time  that 
constitutes  the  distinctive  difference  between  murder  in  the  first 
and  in  the  second  degree;  an  unlawful  killing,  with  malice, 
deliberation  and  premeditation  constitutes  the  crime  of  murder 
in  the  first  degree.  It  matters  not  liow  short  the  time,  if  the 
party  has  turned  it  over  in  his  mind,  and  w^eighed  and  deliber- 
ated npon  it.     Fahnestock  vs.  State,  23  Ind.,  231. 

If  the  jury  believe,  from  the   evidence,  that  the  defendant 

sought  a  quarrel  with  the  deceased  and  first  struck  him  a  violent 

l)low  with  his  fist,  in  the  expectation  that  the  deceased  would 

resent  the  blow,  and  in  his  turn  attack  the  defendant,  so  that  lie 

might  have  a  chance  to  shoot  or  stab  the  deceased,  and  thereby 

33 


514  INPTRrCTIONS 

take  liis  life;  and  further,  that  in  accorchince  witli  such  expecta- 
tion the  said  deceased  did  thereupon  attack  the  defendant  with 
his  fists,  and  the  defendant  then  shot  the  deceased,  as  charged  in 
the  iiidictnicnt,  sufh  killing  would  be  murder  in  the  first  degree. 

rrciiuHlitaled  Desisrii. — If  the  jury  believe,  fi-oni  the  evidence, 
beyond  a  reasonable  doubt,  that  the  defendant  shot  the  deceased, 
and  thereby  caused  his  death,  in  manner  and  form  as  charged  in 
the  indictment,  then  no  matter  what  the  provocation,  and  no 
matter  what  the  other  surrounding  circnunstances  may  have  been, 
unless  the  act  of  shooting  w%as  justitiable,  as  Explained  in  tliese 
instructions,  then  the  defendant  is  guilty  (of  murder  in  tlic  first 
degree);  provided,  you  further  believe,  fi-om  the  evidence, 
beyond  a  reasonable  doubt,  that  the  defendant  did  the  shooting 
with  a  premeditated  design  to  kill  the  deceased.  Roman  vs. 
The  State,  ^\^\^.,2>\^. 

If  the  jury  believe,  from  the  evidence,  beyond  a  reasonable 
doubt,  that  the  defendant  sought  a  difficulty  with  the  deceased 
for  the  purpose  of  killing  him,  and  with  that  design  j)rovoked 
a  fight  with  him,  and  in  the  fight  did  kill  him  in  pursuance  of 
his  intent  of  taking  the  life  of  the  deceased,  then  the  jury  will 
find  the  defendant  guilty  of  murder. 

Intoxication  as  Affecting  Intent. — That  while  it  is  a  general  rule 
of  law  that  voluntary  drunkenness  is  no  excuse  or  justification  lor 
a  crime  jierpetrated  under  its  influence,  still,  in  cases  of  this 
kind,  drunkenness,  if  proved,  may  sometimes  be  considered  by 
the  jury  for  the  purpose  of  determining  whether  the  accused,  at 
the  time  of  the  alleged  offense,  was  capable  of  forming  a  wilful, 
deliberate  and  premeditated  design  to  take  life;  and  in  this  case, 
although  the  jury  may  believe,  from  the  evidence,  beyond  a 
reasonable  doubt,  that  the  defendant  killed  the  deceased  in 
manner  and  form  as  charged  in  the  indictment,  still,  if  you 
further  believe,  from  the  evidence,  that  before  and  at  the  time 
the  defendant  struck  the  fatal  blow  he  was  so  deeply  intoxicated 
by  spirituous  liquors  as  to  be  incapable  of  forming  in  his  mind  a 
design,  deliberately  and  premcditatedly,  to  do  the  act,  then  such 
killing,  under  such  a  state  of  intoxication,  would  only  be  nnirder 
of  the  second  degree.  3  Greeidf.  Evi.,  §  148;  Wharton's  Law 
on  Homicide,  369.      Contra — Htate  vs.  Cross,  27  Mo.,  332. 


IN    CKIMINAL    CASES.  515 

By  Poisoning- —  Material  Averments  to  be  Proved. — The  court  in- 
structs the  jury,  as  a  matter  of  law,  that  the  burden  of  proof  is 
on  the  prosecution  to  establish,  by  the  evidence,  every  material 
allegation  in  the  indictment,  beyond  a  reasonable  doubt;  and  if 
they  have  failed  to  do  so,  the  jury  must  acquit  the  defendant. 

That  in  order  to  convict  the  defendant  of  the  crime  charo-ed 
against  him,  the  jury  must  find,  from  the  evidence: 

First.  That  the  deceased  came  to  his  death  by  poison. 

Second.  That  it  was  administered  to  him  by  the  defendant  in 
his  lifetime. 

Third.  That  defendant  administered  the  poison  to  the  de- 
ceased wilfully  and  knowingly,  and  with  the  intention  of 
depriving  him  of  life;  and. 

Fourth.  That  the  deceased  actually  died  from  the  effects  of 
the  poison  so  administered  to  him. 

And  if  the  jury  entertain  any  reasonable  doubt  upon  eitlrer 
of  these  material  propositions,  then  the  prosecution  has  failed  to 
establish  its  case,  and  the  jury  must  acquit  the  defendant. 

Not  Necessary  to  Prove  the  Particular  Poison  or  Quantity The  jury 

are  instructed,  that  in  this  class  of  cases,  where  the  indictment 
charges  that  death  was  caused  by  poisoning,  it  is  not  necessary 
to  prove  the  particular  substance  or  kind  of  poison  used,  nor  is 
it  necessary  to  give  direct  and  positive  proof  what  is  the  quan^ 
tity  which  would  destroy  life,  nor  is  it  necessary  to  prove  thai 
such  a  quantity  was  found  in  the  body  of  the  deceased.  It  is 
sufficient,  if  the  jury  are  satisfied,  by  the  evidence,  beyond  a 
reasonable  doubt,  that  the  death  was  caused  by  poison  of  some 
kind,  and  that  the  poison  was  administered  by  the  accused,  with 
the  intention  of  causing  death.  3  Greenl.  Ev.,  §  135 ;  Wliail. 
Am.  Law  of  Hom.,  323. 

Death  Hastened  by,  Etc Although  the  jury  may  believe,  from 

the  evidence,  that  a  few  days  preceding  the  death  of  the  de- 
ceased, he  was  suffering  from  {any  disease),  still,  if  the  jury 
further  believe,  from  the  evidence,  beyond  a  reasonable  doubt, 
that  the  death  of  the  deceased  was  hastened  liy  the  subsequent 
administration  of  arsenic  given  by  the  defendant,  and  that  it  was 
given  by  her  for  the  purpose  of  hastening  his  death,  then  the  jury 


510  INSTRUCTIONS 

should  lintl  the  defendant  guilty  in  manner  and  form  as  charged 
in  the  indictment.  3  Greeiil.  Ev.,  §  1:30;  2  IJishop  on  Crim. 
Law,  §  679-68(»;   Wharton  Am.  La.v,  Ilom.,  241. 

Circumstantial  Evidence  Must  Exclude,  Etc. — The  jury  are  in- 
structed, that  when  circumstances  alone  are  relied  upon  by  the 
people  for  a  conviction,  the  circumstances  must  be  such  as  apply 
exclusively  to  the  defendant,  and  such  as  are  reconcilable  with 
no  other  reasonable  hypothesis  than  that  of  the  defendant's  guilt ; 
and  they  must  satisfy  the  mind  of  the  jury,  l)eyond  a  reasonable 
doubt,  of  the  guilt  of  the  defendant. 

And  in  this  case,  if  the  jury  iind,  from  the  evidence,  that  all 
the  criminating  circumstances  relied  upon  by  the  people  for  a 
conyiction  will  as  well  apply  to  another  person  as  to  the  defend- 
ant ;  or  if  they  are  reconcilable  with  any  reasonable  hypothesis 
other  than  that  of  the  defendant's  guilt,  or  if  they  do  not  satisfy 
the  mind  of  the  jury,  beyond  any  reasonable  doubt,  of  the  guilt 
of  the  defendant,  then  he  cannot  be  legally  convicted,  and  you 

must  acquit  him, 

[See  Circumstantial  Evidence.] 

Circumstances  Pointing?  as  Strongly  to  Some  Other  Person. — Should 
the  jury  believe,  from  the  evidence,  that  the  deceased  died  from 
the  effect  of  poison,  administered  to  him  by  some  one;  still,  if 
the  jury  further  find,  from  the  evidence,  that  some  other  person 
had  the  same  opportunity  to  administer  the  poison  that  the 
defendant  had,  and  that  all  the  circumstances  point  as  clearly  to 
some  other  person  as  having  administered  the  poison,  as  to  the 
defendant,  then  these  facts  are  sufficient  to  raise  a  reasonabh? 
doubt  in  the  mind  of  the  jury  as  to  the  guilt  of  the  defendant, 
and  the  jury  should  acquit  him. 

Pointing  to  Suicide. — Although  the  jury  should  believe,  h-om 
the  evidence,  beyond  a  reasonable  doubt,  that  the  deceased  died 
from  the  effect  of  poisoning;  still,  if  the  jury  further  find,  from 
the  evidence,  that  he  had  the  same  opportunities  for  takmg  the 
poison  himself,  without,  the  aid  of  the  defendant,  that  the  de- 
fnndant  had  to  give  it  to  him,  and  if  it  is  possible  in  any  reason- 
able mauner  to  explain  all  the  facts  and  circumstances  proved 


IN    CKIMINAL    CASES.  517 

on  the  trial,  consistently  with  the  hypothesis  that  he  did  take  the 
poison  himself,  either  for  the  purpose  of  committing  suicide,  or 
as  a  medicine,  then  this  is  sufficient  to  raise  a  reasonable  doubt 
in  the  minds  of  the  jury  as  to  the  guilt  of  the  defendant,  and 
they  should  render  a  verdict  of  not  guilty. 

Doubt  as  to  Wliich  of  Two  or  More  is  (Juilty. — Although  the  jury 
may  believe,  from  the  evidence,  that  the  deceased  was  killed  at 
the  time  and  in  the  manner  mentioned  in  the  indictment,  and 
that  the  shot  that  caused  his  death  was  fired  by  E.  F.,  or  by  the 
defendant,  C.  D.;  still,  if  the  jury  are  unable,  from  the  evidence, 
to  determine  by  which  of  said  persons  tlie  shot  was  fired,  then 
the  jury  should  consider  the  case  precisely  the  same  as  though 
it  had  been  proved  that  some  person  other  than  the  defendant 
fired  the  fatal  shot. 

The  jury  are  instructed,  that  if  they  find,  from  a  consideration 
of  all  the  evidence,  that  it  points  as  clearly  to  one  A,  B.  as  the 
person  w^ho  committed  the  crime  in  question,  as  it  does  to  the 
defendant,  or  if,  after  a  fair  and  full  consideration  of  all  the 
evidence,  the  jury  entertain  a  reasonable  doubt  as  to  whether  the 
said  A.  B.  or  the  defendant  is  the  guilty  party,  then  the  jury 
should  acquit  the  defendant. 

The  court  instructs  the  jur}^,  that  when  several  are  jointly 
charged  with  the  commission  of  a  crime,  and  it  is  clearly  proved 
that  some  one  or  more  of  the  defendants  are  guilty,  but  it  is  not 
shown,  beyond  a  reasonable  doubt,  that  all  are  so,  or  who,  or 
which  of  them  are  guilty,  then,  and  in  that  case,  all  the  defend- 
ants must  be  acquitted, 

[For  Proof  of  Identity,   see  Burglary.] 

Mnrder  not  Rednced  to  Manslaughter  by  Provoking- Words. — The  court 
further  instructs  the  jury,  tliat  where  a  person  strikes  another 
with  a  deadly  weapon,  in  a  manner  calculated  or  likely  to  pro- 
duce death,  no  words  of  reproach,  or  abuse,  or  gestures,  however 
irritating  or  provoking,  amount  to  considerable  provocation  in 
law,  so  as  to  reduce  the  crime  of  killing  from  murder  to  man- 
slaughter, in  case  such  blow  results  in  death.  People  vs.  Turley, 
50  Cal.,  469;  Bird  vs.  State,  50  Ga.,  585. 


518  IXSTRUCTIOXS 

In  the  case  of  a  voluntary  killini;-  of  a  Inunau  being,  without 
lawful  excuse  or  justification,  in  (H-ilci-  to  rt'duce  the  ott'euse  fi'oni 
murder  to  nuinshiughter,  there  must  be  a  serious  and  highly 
provoking  injury  inliicted  upon  the  person  killing,  sutHcient  to 
excite  an  irresistible  passion  in  a  reasonable  person,  or  an 
attempt,  by  the  person  killed,  to  commit  a  serious  persoiuil 
injury  on  the  person  killing. 

Verdict  may  be  for  Manslaiiirliter. — The  jury  are  instructed,  that 
under  an  indictment  for  murder,  a  party  accused  may  be  found 
guilty  of  manslaughter.  And  in  this  case,  if  after  a  careful  and 
dispassionate  consideration  of  all  the  })roof  and  circ-umstanccs  in 
evidence  before  you,  you  have  any  reasonable  doubt  as  to 
whether  the  defendant  is  guilty  of  mui-der,  then  you  should  con- 
sider whether  he  is  guilty  of  manslaughter;  and  if  from  a  full 
and  careful  consideration  of  all  the  evidence  before  you,  you 
believe,  beyond  a  reasonable  doubt,  that  the  defendant  is  guilty 
of  manslaughter,  you  should  so  find  by  your  verdict,  (and  in  that 
event  it  will  be  your  duty  to  fix,  l)y  your  verdict,  the  term  for 
which  he  shall  be  confined  in  the  penitentiary,  which  may  be 
for  any  length  of  time,  not  less  than  one  year,  and  it  may  be  for 
the  term  of  his  natural  life).    Schnier  vs.  The  People,  23  111.,  1. 

MAXSLAUGUTER. 

Manslaughter  Defined. — Manslaughter  is  the  unlawful  and  felo- 
nious killing  of  another  without  any  malice,  either  expressed  or 
implied  (and  without  any  mixture  of  deliberation  wliatever). 
It  nuiy  be  voluntary  or  involuntai'y. 

Voluntary. — In  cases  of  voluntary  inanslaughtor,  thci'(>  must  l)e 
a  serious  and  higldy  proxoking  injury  iullictcil  npoii  the.  person 
killing,  sufficient  to  excite  an  irresistible  passion  in  a  reasonable 
person,  or  an  attempt  by  the  person  killed  to  commit  a  serious 
personal  injury  on  the  person  killing.  The  killing  nmst  be  the 
result  of  the  sudden,  violent  impulse  of  passion,  supposed  to  be 
irresistible;  for  if  there  should  apjiear  to  have  l)een  an  interval 
between  the  assault  or  provocation  gi\c'n,  and  the  killing,  suffi- 
cient for   the    voice  of   reason   and   humanity  to   be  heard,  the 


IN    CRIMINAL    CASES.  519 

killing  shall  be  attributed  to  deliberate  revenge,  and  punished 
as  murder. 

DiToluiitary. — Involuntary  manslaughter  consists  in  the  killing 
of  a  human  being,  without  any  intent  to  do  so,  in  the  commission 
of  an  unlawful  act,  or  a  lawful  act  which  probably  might  pro- 
duce such  a  consequence,  in  an  unlawful  manner. 

If  the  jury  believe,  from  the  evidence,  beyond  a  reasonable 
doubt,  that  the  defendant  killed  the  deceased  without  any  legal 
excuse  or  justification,  as  explained  in  these  instructions;  still, 
if  the  jury  further  believe,  from  the  evidence,  that  the  {instru- 
ment used)  was  not  a  deadly  weapon,  and  that  when  the  defend- 
ant struck  the  blow  it  was-not  his  intention  to  take  the  life  of  the 
deceased,  but  only  to  chastise  him,  then  you  should  find  the  de- 
fendant guilty  of  manslaughter,  (and  fix  the  term  of  his  confine- 
ment in  the  penitentiary,  which  may  be  for  any  period  of  time, 
etc.).     2  Whar.,  §  944-931. 

The  jury  are  instructed,  that  if  from  motives  of  hatred,  re- 
venge, jealousy  or  for  any  wrong  or  injury,  real  or  imaginary,  a 
sane  person  kills  another,  the  killing  will  be  referred  to  malice, 
and  must  be  regarded  as  murder.  If,  however,  the  killing  is  the 
result  of  a  sudden,  violent  impulse  of  passion,  caused  by  a  serious 
or  highly  provoking  injury  inflicted  upon  the  person  killing,  and 
which  is  sufficient,  in  the  minds  of  the  jury,  to  excite  an  irresist- 
ible passion  in  a  reasonable  person,  and  the  interval  of  time 
between  the  provocation  and  the  killing  is  not  sufficient  for  the 
passions  to  cool  and  the  voice  of  reason  and  humanity  to  be 
heard,  then  the  killing  is  manslaughter  and  not  murder.  Sahnier 
vs.  The  People,  23  111.,  1 ;  Fisher  vs.  The  People,  23  111.,  283. 

The  jury  are  instructed,  that  if  they  believe,  from  the  evidence, 
that  defendant  voluntarily  got  into  a  difficulty,  or  fight,  with  the 
deceased,  but  did  not  intend  to  kill  him,  at  the  time,  and  did  not 
decline  further  fio-htino;  before  the  fatal  blow  was  struck,  and 
then  drew  his  knife,  and  with  it,  struck  and  killed  the  deceased, 
then  the  jury  should  find  the  defendant  guilty  of  manslaughter; 
although  the  jury  may  further  believe,  from  the  evidence,  that 
the  cutting  and  killing  were  done  in  order  to  prevent  the  de- 


520  INSTRUCTIONS 

ceased   from  gcttiiii;  the  advantage  in  the  light,  or  doing  tlie 
defendant  great  bodily  injury. 

MALICE    AND    INTENT. 

Malice  Delliiod. — Tlie  court  instructs  the  jury,  that  nialiee,  with- 
in the  meaning  of  the  law,  includes  nut  only  anger,  hatred  and 
revenge,  but  every  other  unlawful  and  nnjustiiiable  motive. 
State  vs.  Goodenow,  65  Me.,  30, 

.Malice  Denotes  any  Wicked  or  Corrnpt  Motive. — That  malice  is  not 
confined  to  ill-will  towards  an  individual,  but  it  is  intended  to 
denote  an  action  tiowing  from  any  wicked  and  corrupt  motive. 
A  thing  done  with  a  wicked  mind,  and  attended  with  such  cir- 
cumstances as  plainly  indicate  a  heart  regardless  of  social  duty, 
and  fully  1)eut  on  mischief,  indicates  malice  within  the  meannig 
of  the  law;  hence,  malice  is  implied  from  any  deliberate  and  cool 
act  against  another,  however  sudden,  which  shows  an  abandoned 
and  malignant  heart. 

Malice  Presumed,  When. — The  court  instructs  the  jnry,  that  if 
without  such  provocation  as  is  apparently  sufficient  to  excite  irre- 
sistible passion,  a  person  strikes  another  with  a  deadly  Aveapon, 
likely  to  occasion  death,  although  he  had  no  previous  malice  or 
ill-will  against  the  party  struck,  yet  he  is  presumed  to  have  had 
such  malice  at  the  moment  of  striking,  aiul  if  death  results  from 
the  blow  it  will  be  murder. 

Malice  Aforetliouerht. — The  jury  are  instructed,  that  the  deliber- 
ate intention,  called  nuilice  aforethought,  need  be  oidy  such  de- 
liberation and  thought  as  enables  a  ])erson  to  ap}>reciate  and 
understand,  at  the  time  the  act  was  connnittcd,  the  nature  of  his 
act  and  its  probable  results. 

To  constitute  malice  aforethought,  no  particular  time  need  in- 
tervene between  the  formation  of  the  intention  and  the  act;  it  is 
enough  if  the  intent  to  commit  the  act,  with  a  full  appreciation 
of  the  residt  likely  to  folU)W,  was  present  at  the  time  the  act  was 
committed,  and  that  the  act  was  not  the  result  of  some  sudden 
heat  of  passion.  ])rovoked  by  some  cause  calculated  to  override 
the  judgment,  and  before  sufficient  time  elapsed  for  reason  to  re- 
sume its  sway. 


IN    CRIMINAL    CASES.  521 

Malice  Implied. — The  jury  are  instructed,  that  malice  is  always 
implied  in  law  from  a  wilful  and  criminal  act,  unless  the  evi- 
dence shows  that  the  defendant  was  acting  from  some  innocent 
or  proper  motive. 

Intent,  How  Proved. — Upon  the  question  of  intent,  the  court  in- 
structs the  jury,  that  the  law  presumes  a  man  to  intend  the  rea- 
sonable and  natural  consequences  of  any  act  intentionally  done; 
and  this  presumption  of  law  will  always  prevail,  unless,  from  a 
consideration  of  all  the  evidence,  bearing  upon  the  point,  the 
jury  entertain  a  reasonable  doubt  whether  such  intention  did 
exist. 

The  jury  are  instructed,  that  if  the  killing  of  the  person,  men- 
tioned in  the  indictment,  has  been  satisfactorily  shown  by  the 
evidence,  beyond  all  reasonable  doubt,  to  have  been  the  act  of 
the  defendant,  then  the  law  presumes  it  to  have  been  murder; 
provided,  the  jury  further  believe,  from  the  evidence,  beyond  a 
reasonable  doubt,  that  no  circumstances  existed  excusing  or  jus- 
tifying the  act,  or  mitigating  it  so  as  to  make  it  manslaughter. 

Presumed  to  Intend  the  Natural  Consequences  of  the  Act. — That  the 
law  presumes  that  a  person  intends  all  the  natural,  probable  and 
usual  consequences  of  his  act;  that  when  one  person  assaults  an- 
other violently  with  a  dangerous  w^eapon,  likely  to  kill,  not  in 
self-defense,  or  in  defense  of  habitation,  property  or  person,  and 
not  in  a  sudden  heat  of  passion,  caused  by  a  provocation  appar- 
ently sufficient  to  make  the  passion  irresistible  or  involuntary, 
and  the  life  of  the  party  thus  assaulted  is  actually  destroyed,  in 
consequence  of  such  assault,  then  the  legal  and  natural  presump- 
tion is  that  death  or  great  bodily  harm  was  intended,  and  in  such 
case  the  law  implies  malice,  and  such  killing  would  be  murder. 
[See  Assault  with  Intent,  etc.] 

INSANITY  AS  A  DEFENSE. 

Criminal  Responsibility. — The  jury  are  instructed,  as  a  matter  of 
law,  that  if  a  jjerson  has  capacity  and  reason  sufficient  to  enable 
him  to  distinguish  between  right  and  wrong  as  to  the  particular 
act  in  question — that  ]s,  if  he  has  knowledge  and  is  conscious 


522  INSTKL"CTIOXS 

that  the  act  lie  is  doin.^  is  wi-odo-  and  would  deserve  punisliment 
— he  is,  in  the  eye  of  the  \a\v,  ot:  sound  niiud  and  memory,  and 
capable  of  committing  crime.  Bi'lnldeij  vs.  TJte  State,  58 
Ga.,  21)(). 

Wlieii  Not  KcNponsible. — If  the  jury  l)elieve,  from  the  evidence, 
that  at  the  time  wlien  the  fatal  blow  is  alleged  to  have  been 
struck,  the  defendant  was  so  far  affected  in  his  min«l  and  memory 
that  he  was  not  able  to  distinguish  right  and  wi-(Hig,  and  had  not 
knowledge  and  understanding  of  the  character  and  consequences 
of  his  act  and  power  of  will  to  abstain  from  it,  then  he  was  not 
a  legally  I'csponsible  being,  and  the  jui-y  should  tiiid  him  not 
guilty.  State  \?,.  Mewher'te)\'^{S  lo\WA^'^^\  1  W liar.,  Crim.  Law 
7  Ed.,  16;  Co7n.  vs.  Rogers,  7  Mete,  500;  Freeman  vs.  People, 

4  Denio,  10;   State  vs.  Iluting,  21  Mo.,  404;   Willis  vs.  People, 

5  Tiffany,  715;  Anderson  vs.  State,  42  Ga,,  11 ;  People  vs.  Coff- 
in an,  24  Cal.,  230. 

Note. — Three  distinct  theories  have  been  propounded  as  to  the  degree 
of  evidence  requisite  to  justifiy  a  conviction  on  tlie  issue  of  insanity  The 
fli'st  is,  that  insanity,  as  a  defense  of  confession  and  avoidance,  must  be 
proved  by  the  defendant  beyond  a  reasonable  doubt,  and,  unless  this  be 
done,  the  case  of  the  prosecution  being  otherwise  proved,  the  jury  are  to 
convict.  The  second  is,  that  the  jury  are  to  be  governed  by  the  preponder- 
ance of  the  evidence,  and  are  not  to  require  insanity  to  be  made  out  beyond 
a  reasonable  doubt.  A  tliird  view  is,  that  on  such  an  issue  the  prospcution 
must  prove  sanity  beyond  a  reasonable  doubt.  Under  one  or  the  other  of 
the  last  two  rules  the  following  instructions  will  be  proper: 

Burden  of  Proof. — The  court  instructs  the  jury,  that  in  all  crim- 
inal cases,  before  conviction  can  be  had,  the  jiiiy  must  be  satis- 
fied, from  the  evidence,  lieyoiid  a  reasonable  d,)ubt,  that  the 
defendant  is  guilty  in  manner  and  form  as  charged  in  the  in- 
dictment. 

Reasonable  Doubt  as  to  Sanity. — In  order  to  sustain  the  defense 
of  insanity  it  is  not  necessary  that  the  insanity  of  the  a('cused 
be  established,  by  a  preponderance  of  evidi'iu-c;  il',  upon  the 
whole  evidence,  tlui  jury  entertain  a  reasonable  doubt  as  to  the 
canity  of  the  accused  they  must  acquit  him.  IIopps  vs.  The 
People,  31  111.,  3S5;  People  vs.  ^YiUon,  4'J  Cal.,  13. 


INCKIMIXALCASES.  523 

That  while  it  is  true  the  law  presumes  every  man  to  he  sane 
and  responsihle  for  his  acts  until  the  contraiy  appea/rs,  from  the 
evidence,  still,  if  there  is  evidence  in  the  case  tending  to  rehut 
this  presumption  sufficient  to  raise  a  reasonable  doubt  upon  the  is- 
sue of  sanity,  then  the  burden  of  proof  is  upon  the  people  to  show, 
by  the  evidence,  beyond  a  reasonable  doubt,  that  the  defendant 
was  sane,  as  explained  in  these  instructions,  at  ths  time  the  al- 
leged offense  was  committed.  Cone  vs.  McKie^  1  Gray,  61;  1 
Greeul.  Ev.  13  Ed.,  §  81. 

That,  to  w^arrant  a  conviction  in  this  case,  ife  is  incumbent 
upon  the  peof)le  to  establish,  by  evidence,  to  the  satisfaction  of 
the  jury,  beyond  a  reasonable  doubt,  the  existence  of  every  ele- 
ment necessary  to  constitute  the  crime  charged;  and  if,  after  a 
careful  and  imjiartial  examination  of  all  the  evidence  in  the 
case  bearing  upon  the  question  of  sanity,  or  insanity,  the  jury 
entertain  any  reasonable  doubt  of  the  sanity/  of  the  defendant 
at  the  time  of  the  alleged  offense,  they  should  give  the  defend- 
ant the  benefit  of  that  and  acquit  him. 

Sanity  Presumed— Insanity  Mnst  be  Proved. — The  court  instructs 
the  jury,  that  the  law  presumes  everyone  to  be  sane  and  respon- 
sible for  his  acts  until  the  contrary  be  shown  by  the  evidence, 
and  when  insanity  is  set  up  as  a  defense  to  an  alleged  criminal 
act,  the  burden  of  proof  is  upon  the  defendant  to  show,  l:)y  a  pre- 
ponderance of  evidence,  that  he  was  affeoted  by  insanity,  or  by 
some  insane  delusion,  as  explained  in  these  instructions,  at  the 
time  of  the  act,  to  such  an  extent  tjaat  he  did  not  know 
what  he  was  doing,  or  that  he  did  not  know  that  what  he  was 
doing  was  wrong.  1  Whar.  Grim.  Law,  7  Ed.,  55 ;  State  vs. 
Laurence,  57  Me.,  574;  Com.  vs.  Eddy^  7  Gray,  583;  Ferris  vs. 
The  People,  35  K  Y.,  125 ;  Loeffner  vs.  State.  10  Ohio  St.,  599; 
State  vs.  Hundley,  46  Mo.,  414;  State  vs.  Felter,  32  Iowa,  50. 

The  jury  are  instructed,  that  in  all  criminal  cases  the  law  pre- 
sumes the  defe^idant  to  have  been  sane,  and  to  have  possessed 
a  sufficient  degree  of  reason  to  be  refj.ponsible  for  crime,  until 
the  contrary  be  shown  by  a  preponderauce  of  the  evidence;  and 
in  this  case,  if  the  jury  believe,  from  the  evidence,  that  the  de- 
fendant committed  the  act  charged  in  the  indictment,  in  manner 


524  INSTRUCTIONS 

und  form  as  therein  charged,  then  to  establish  a  defense  on  the 
ground  (jf  insanity,  the  burden  of  proof  is  on  the  defendant,  to 
tihow,  by  a  preponderance  of  eviden(;e,  that  at  the  time  of  com- 
mittin<j^  the  act  he  was  Laboring  under  such  a  defect  of  mind 
and  reason  that  he  did  not  know  tht;  nature  of  the  act  lie  was 
doing,  or  if  he  did  know,  he  did  not  know  he  was  doing  what  was 
wrong. 

Impulse  of  P.ission  no  Defense. — The  jury  are  instructed,  that 
one  who,  in  possessi(.)n  of  ji.  sound  mind,  commits  a  criminal  act 
under  the  impulse  of  passion,  or  revenge,  which  may  tempo- 
rarily dethrone  his  reason,  or  for  the  time  being  control  his  will, 
cannot  be  shielded  from  the  consequences  of  the  act  by  the  jilea 
of  insanity. 

Act  Must  be  in  Consequence,  Etc. — That  insanity  will  only  excuse 
the  commission  of  a  criminal  act  when  it  is  made  to  appear, 
affirmatively,  by  a  preponderance  of  the  evidence,  that  the  person 
committing  it  was  insane,  and  that  the  offense  was  the  dire(;t  con- 
sequence of  his  insanity,     titate  vs.  Stickler/,  41  Iowa,  232. 

Partial  Insanity. — That  the  law  recognizes  partial  as  well  as 
general  insanity;  that  a  person  may  be  insane  upon  one  or  more 
subjects,  and  sane  as  to  others;  that  he  may  be  laboring  under  a 
mental  delusion  upon  some  pai-ticular  matter,  or  regarding  a 
particular  person,  and  generally  sane  upon  all  other  subjects. 
As  regards  the  guilt  or  innocence  of  a  party  charged  with  the 
commission  of  crime  it  makes  no  difference  whether  the  act 
charged  was  produced  by  general  insanity  or  by  mental  delu- 
sion regarding  some  particular  subject  or  person.  If  the  })erson 
charged  is,  at  the  time  of  the  alleged  offense,  laboring  under  a 
mental  delusion,  and  the  act  itself  is  the  product  of  such  delu- 
sion, and  the  party,  at  the  time,  did  not  know  or  realize  that  he 
was  doinir  wronir,  or  conunittiuix  a  crime,  then  he  cannot  beheld, 
criminally,  responsible  for  the  act. 

Iiisajjitj  the  Efliricnt  Cause,  Etc. — The  court  instructs  the  jury, 
that  when  a  person  is  on  trial  on  an  indictment  for  murder,  and 
the  defense  of  insanity  is  set  up,  and  it  appears,  from  the  evi- 


IN    CRIMINAL    CASES.  525 

.deuce,  that  at  the  time  of  doing  the  act  charged  the  prisoner 
was  not  of  sound  mind,  but  was  affected  with  insanity,  and  such 
affection  was  the  efficient  cause  of  the  act,  and  that  he  would 
not  have  done  it  but  for  the  affection,  then  he  ought  to  be 
acquitted. 

Insanity— Test  of  Insanity. — The  court  instructs  the  jury,  that 
the  law  presumes  every  man  to  be  sane  until  the  contrary  is 
shown,  and  when  insanity  is  set  up  as  a  defense  by  a  person  ac- 
cused of  crime,  in  order  that  tlie  defense  may  avail,  the  jury 
ought  to  believe,  from  the  evidence,  that  at  the  time  of  the  com- 
mission of  the  crime  the  mind  of  the  accused  was  so  far  affected 
with  insanity  as  to  render  him  incapable  of  distinguishing  be- 
tween right  and  wrong  in  respect  to  tlie  killing;  or  if  he  was 
conscious  of  the  act  he  was  doing,  and  knew  its  consequences, 
that  he  was,  in  consequence  of  his  insanity,  wrought  up  to  a 
frenzy  which  rendered  him  unable  to  control  his  actions  or  di- 
rect his  movements. 

To  constitute  a  defense,  tlie  unsoundness  of  mind,  or  insanity, 
must  be  of  such  a  degree  as  to  create  an  uncontrollable  impulse 
to  do  the  act  charged  by  overruling  the  reason  and  judgment, 
and  obliterating  the  sense  of  right  and  wrong  as  to  the  particu- 
lar act  done,  and  depriving  the  accused  of  the  power  of  choos- 
ing between  them. 

Drunkenness  no  Excuse  for  Crime. — The  jury  are  instructed,  that 
voluntary  intoxication  or  drunkenness  is  no  excuse  for  crime 
committed  under  its  influence,  nor  is  any  state  of  mind  resulting 
from  drunkenness,  short  of  actual  insanity  or  loss  of  reason,  any 
excuse  for  a  criminal  act.  State  vs.  Coleman^  27  La.  Ann.,  GDI ; 
Beasley  vs.  State,  50  Ala.,  149. 

In  relation  to  the  question  of  drunkenness  as  an  excuse  for 
crime,  the  court  instructs  the  jury,  that  if  a  person  is  sober 
enough  to  intend  to  shoot  at  another,  and  actually  does  shoot  at 
and  hit  him,  without  any  justification  therefor,  then  the  law 
presumes  that  such  person  is  sober  enough  to  form  the  specitht 
intention  to  kill  the  one  shot  at,  and,  in  such  case,  he  is  crimi- 
nally responsible  for  his  act.  Estes  vs.  State,  ^^  QQ.,yol)  1 
Wharton  Crim.  Law,  §  32, 


526  INSTRrCTTOXS 

The  jury  are  furtlier  instructed,  as  a  matter  of  law,  that  if  a 
person  vohintarily  becomes  intoxicated,  even  total  insanity,  if 
the  immediate  result  of  such  intoxication,  does  not  excuse  a 
criminal  act  committed  while  under  the  intluence  of  such  intox- 
ication.     1  Wharton  on  Crim.  Law,  §  32. 

The  jury  are  further  instructed,  that  while  intoxication  or 
druid-cenness  is  no  excuse  for  a  criminal  act  conunitted  under  its 
influence,  still  settled  insanity  produced  by  intoxication  excuses 
an  act  committed  under  its  influence  and  caused  by  it,  in  the 
same  way  as  insanity  produced  by  any  other  cause.  1  Wharton 
Crim.  Law,  §  33.     ' 

If  the  jury  believe,  from  the  evidence,  beyond  a  reasonable 
doubt,  that  the  defendant  committed  the  act  charged,  in  manner 
and  form  as  charged  in  the  indictment,  still  if  the  jury  further 
believe,  from  the  evidence,  that  the  defendant,  at  the  time,  was 
in  such  a  state  of  mental  insanity  (not  produced  by  the  im- 
mediate effects  of  intoxicating  drink)  as  not  to  have  been  con- 
scious of  what  he  was  doing,  or  that  the  act  itself  was  wrong, 
then  they  should  find  the  defendant  not  guilty.  U.  S.  vs.  DreiL\ 
5  Mason  U.  S.  Eeports,  28;  Carter  vs.  StMe,  12  Tex.,  500; 
Maconneliey  y%.  State^  h  Ohio  St.,  77;  Bales  \?>.  State,  3  W. 
Ya.,  685. 

The  jury  are  instructed,  that  under  our  law  voluntary  drunk- 
enness is  no  excuse  for  the  commission  of  a  crime.  AVhore, 
without  intoxication,  the  law  would  impute  a  criminal  intent, 
then  proof  of  drunkenness  will  not  avail  to  disprove  such  intent. 
Bafferty  vs.  The  People,  QQ  111.,  118. 

The  jury  are  instructed,  that  although  they  m.ay  believe,  from 
the  evidence,  that  the  defendant  committed  the  criminal  act,  in 
manner  and  form  as  charged  in  the  indictment,  still,  if  the  jin-y 
further  believe,  from  the  evidence,  that  at  the  time  he  so  com- 
mitted the  act  he  was  so  affected  by  what  is  known  as  delirium 
tremens  tliat  he  did  not  ]<n(>\v  the  nature  of  the  act,  nor  whcthci' 
it  was  wrong  or  not,  and  that  such  delirium  was  induced  by 
antecedent  and  long-continued  use  of  intoxicating  drinks,  and 
not  as  the  immediate  effect  of  intoxication,  then  the  defendant 
cannot  l>e  held  ciliiiiually  responsible  for  such  act,  and  the  jury 
should  find  the  defendant  not  guilty.  Bailey  vs.  State,  26  Ind., 
422. 


IN    CRIMINAL    CASES.  527 

That  although  drunkenness,  in  itself,  is  no  excuse  or  palliation 
for  crime  conmiitted  while  under  its  influence,  yet  mental  un- 
soundness, superinduced  by  excessive  drunkenness,  and  continu- 
inor  after  the  intoxication  has  subsided,  mav  be  an  excuse; 
provided,  such  mental  derangement  be  sufficient  to  deprive  the 
accused  of  the  ability  to  distinguish  between  right  and  wrong. 
Beasleij  vs.  The  State,  50  Ala.,  149. 

SELF-DEFENSE. 

Justifiable  Homicide— Self-Defense. — The  jury  are  instructed,  that 
justifiable  homicide  is  the  killing  of  a  human  being  in  self- 
defense,  or  in  defense  of  habitation,  property  or  person  against 
one  who  manifestly  intends  or  endeavors,  by  violence  or  sur- 
prise, to  commit  a  felony  on  either. 

A  bare  fear  of  any  of  these  offenses  is  not  sufficient  to  justify 
the  killing.  It  must  appear  that  the  circumstances  were  suffi- 
cient to  excite  the  fears  of  a  reasonable  man,  and  that  the  party 
killing  acted  under  the  influence  of  those  fears.  Thompson,  vs. 
State,  55  Ga.,  47;  Wall  vs.  State,  51  Ind.,  453;  State  xs.  Stock- 
ton, 61  Mo.,  382. 

The  jury  are  instructed,  as  a  matter  of  law,  that  if  a  person 
believes,  and  has  reasonable  cause  to  believe,  that  another  has 
sought  him  out  for  the  purpose  of  killing  him,  or  of  doing  him 
great  bodily  harm,  and  that  he  is  prepared  therefor  with  deadly 
weapons,  and  the  latter  makes  demonstrations  manifesting  an 
intention  to  commence  an  attack,  then  the  person  so  threatened 
is  not  required  to  retreat,  but  he  has  the  right  to  stand  and  de- 
fend himself,  and  pursue  his  adversary  until  he  has  secured 
himself  from  danger;  and  if  in  so  doing,  it  is  necessary,  or  upon 
reasonable  grounds  it  appears  to  be  necessary,  to  kill  his  antag- 
onist, the  killing  is  excusable  upon  the  ground  of  self-defense. 

Danger  Need  not  be  Real,  if  Reasonably  Apparent. — The  court  in- 
structs the  jury,  that  the  law  is:  If  a  person  is  assaulted  in  such 
a  way  as  to  induce  in  him  a  reasonable  belief  that  he  is  in 
actual  danger  of  losing  his  life,  or  of  suffering  great  bodily 
harm,  he  will  be  justifled  in  defending  himself,  although  the 
danger  be  not  i-eal,  but  only  apparent.     Such  a  person  will  not 


-^ 


528  INSTRUCTIONS 

be  held  responsible,  criminally,  if  he  acts  in  self-defense,  from 
real  and  honest  convictions  as  to  the  character  of  the  danger, 
indnced  by  reasonable  evidence,  although  he  may  be  mistaken 
as  to  the  extent  of  the  actual  danger.  Ste'nimeyer  vs.  The  Peo- 
ple, 95  111.,  383;  Boach  vs.  The  People,  77  111.,  25;  State  vs. 
Fraunhxirg,  40  la.,  555. 

A  person  need  not  be  in  actual  imminent  peril  of  his  life,  or 
of  great  bodily  harm,  before  he  may  slay  his  assailant;  it  is  sufR- 
cien't  if,  in  good  faith,  he  has  a  reasonable  belief,  from  the  facts 
as  they  appear  to  him  at  the  time,  that  he  is  in  such  imminent 
peril.  Murray  vs.  Com.,  79  Pa.  St.,  311;  Roach  vs.  TJie 
People,  71  III,  25. 

That  the  rule  of  law  on  the  subject  of  self-defense  is  this: 
Where  a  man,  in  the  lawful  pursuit  of  his  business,  is  attacked, 
and  when,  from  the  nature  of  the  attack,  there  is  reasonable 
ground  to  believe  that  there  is  a  design  to  take  his  life  or  to  do 
him  great  bodily  harm,  and  the  party  attacked  does  so  believe, 
then  the  killing  of  the  assailant,  under  such  circumstances,  will 
be  excusable  or  justifiable  homicide,  although  it  should  after- 
wards appear  that  no  injury  was  intended  and  no  real  danger 
existed. 

If  the  jury  believe,  from  the  evidence,  that  the  defendant 
was  assaulted  by  the  deceased  in  such  a  way  as  to  induce  in  the 
defendant  a  reasonable  and  well-grounded  belief  that  he  was 
actually  in  danger  of  losing  his  life  or  of  suffci-ing  great  bodily 
harm,  then  he  was  justified  in  defending  himself,  whether  the 
danger  was  real  or  only  a}>parent.  Actual  oi-  i)ositive  danger  is 
not  indispensable  to  justify  self-defense.  The  law  considers 
that  men,  when  threatened  with  danger,  are  obliged  to  judge 
from  appearances  and  determine  therefrom  as  to  the  actual  state 
of  things  surrounding  them;  and,  in  such  cases,  if  persons  act 
from  honest  convictions,  induced  by  reasoiuiblc  evidence,  they 
will  not  be  held  responsible,  (.'riminally,  for  a  mistake  as  to  the 
extent  of  the  actual  danger. 

If  the  jury  believe,  from  the  evidence,  that  at  the  time  the 
said  defendant  is  alleged  to  have  shot  the  deceased,  the  circum- 
stances surrounding  the  defendant  were  such  as  in  sound  reason 
would  justify,  or  induce  in  liis  mind  an  honest  belief  that  he  was 


tN    CRIMINAL    CASES.  529 

in  claiic;cr  of  receiving;,  from  tlie  deceased,  some  great  bodily 
harm,  and  that  the  defendant,  in  doing  what  ho  then  did,  was 
acting  from  the  instinct  of  self-preservtition,  then  he  is  not 
guilty,  altliongh  there  may,  in  fact,  have  been  no  real  or  actual 
danger. 

In  considering  whether  the  killing  was  justifiable  on  the 
ground  that  the  killing  was  in  self-defense,  the  jury  should 
consider  all  the  circumstances  attending  the  killing,  the  conduct 
of  the  j^arties  at  the  time  and  immediately  prior  thereto,  and  the 
degree  of  force  used  by  the  prisoner  in  making  what  is  claimed 
to  be  this  self-defense,  as  bearing  upon  the  question  whether  the 
blows,  if  given,  were  actually  given  in  self-defense,  or  whether 
they  were  given  in  carrying  out  an  unlawful  purpose;  and  if  the 
jury  believe,  from,  the  evidence,  that  the  force  used  was  unrea- 
sonable, in  amount  and  character,  and  such  as  a  reasonable  mind 
would  have  so  considered,  under  the  circumstances,  it  is  proper 
for  the  jui-y  to  consider  that  fact  in  determining  whether  the 
killing  was  in  self  defense. 

Force  may  be  Resisted  by  Force. — The  jury  are  instructed,  that 
under  the  laws  of  this  state  a  person  has  a  right  to  resist  an  un- 
lawful attack  by  force;  and  if  it  be  necessary  to  preserve  the 
life  of  the  person  assailed,  or  to  prevent  great  bodily  injury  to 
him,  the  repelling  force  may  go  to  the  extent  of  taking  the  life 
of  the  assailant. 

If  the  jury  believe,  from  the  evidence,  that  at  the  time  of  the 
alleged  assault  the  said  A.  B.  made  an  attack  upon  the  defend- 
ant, apparently  with  an  intent  to  do  him  great  bodily  injury,  and 
that  the  defendant's  conduct  on  that  occasion  was  the  result  of  a 
reasonable  a23j3rehension,  honestly  entertained,  that  his  act  was 
necessary  to  protect  himself  from  great  bodily  harm  then 
threatened,  then  the  jury  should  find  the  defendant  not  guilty. 

If  the  jury  believe,  from  the  evidence,  that  at  the  time  of  the 
shooting  in  question  the  said  A.  B.  made  an  attack  on  the 
defendant  with  a  club,  under  such  circumstances  as  to  create  in 
the  mind  of  a  reasonable  and  ordinarily  courageous  man  an 
honest  belief  that  he  was  in  danger  of  receiving  great  bodily 
harm,  and  if  the  jury  further  believe,  from  the  evidence,  that 
the  defendant  at  the  time  did  honestly  believe  he  was  in  danger 

S4: 


530  INSTRUCTIONS 

of  roccivinii*  n-i'oat  budilv  liai'iii,  and  in  li'ood  faitli  shot  to  pi'otcct 
himself  theivlVoiii.  and  not  from  motives  of  ill-will  or  lualire, 
then  sucli  shootin«^  was  excusable,  and  the  jury  should  lind  the 
defendant  not  guilty. 

Assailant  Kclirinp:  from  the  Fi^'ht, — The  jury  are  instructed,  tliat 
although  they  may  believe,  from  the  evidence,  that  the  defend- 
ant 'onimenced  the  fight  in  question,  and  made  the  first  attack 
npoi.  the  deceased;  still,  if  the  jury  further  believe,  from  the 
evidence,  that  the  defendant  afterwards  and  before  the  fatal 
blow  AVIS  struck,  ceased  to  fight,  and  in  good  faith  withdrew 
from  tlh'  contlict  by  i-etrcating,  or  otherwise,  then  the  right  of 
the  deceased  to  employ  force  against  the  defendant  ceased;  and 
if  the  dG.'.eased  did  not  then  desist  from  attempting  to  use 
violence  t  awards  the  defendant,  then  the  defendant's  right  to 
defend  hir.tself  revived;  and  if  he  then  fouml  himself  in  a[>par- 
ent  dango.-  of  losing  his  life,  or  of  sustaining  great  bodily 
injury  at  tl  e  hands  of  the  deceased,  he  had  the  same  right  to 
defend  him.jelf  that  he  would  hav(!  had  if  he  had  not  originally 
commenced  the  eonfiict.  Ter/'ell  vs.  Tlic  Comtnonwealth,  1"> 
Bush.  (Ky.)^  246. 

To  justiiy  the  taking  of  life,  in  self-defense,  it  nnist  a})pe;ii-, 
from  the  evidence,  that  the  defendant  not  only  really,  and  in 
good  faith,  endeavored  to  decline  any  further  struggle,  and  to 
escape  from  his  assailant  before  the  fatal  blow  was  given,  but  it 
must  also  apjicar  that  the  cin-umstances  were  such  as  to  excite 
the  fears  of  a  reasonable  person  that  the  deceased  intended  to 
take  his  life,  or  to  infiict  on  him  great  bodily  harm,  and  that  the 
defendant  really  acted  under  the  influence  of  these  fears  and  not 
in  a  spirit  of  revenge. 

Defense  of  Habitation. — The  law  is  that  one  assailed  with  a 
deadly  weapon  in  his  own  house,  is  not  oldiged  to  fiee.  If  such 
a  person  is  violently  assaulted,  without  being  in  fault,  he  may 
rejjcl  force  by  force,  and  if,  in  tlic  i-easonable  exercise  of  his 
right  of  self-defense,  and  using  no  more  force  than  is  api>arently 
necessary  in  defense  of  himself  and  habitation,  he  kills  his 
assailant,  the  killing  is  justifiable  homii-ide.  liaiii/an  vs.  State, 
57  Ind.,  80. 


IN    CRIMINAL    CASES.  531 

If  the  jury  believe,  from  the  evidence,  that  the  defendant,  in 
defense  of  himself,  inflicted  npon  the  deceased  the  wounds  or 
stabs  which  caused  his  death,  while  deceased  was  manifestly 
intending  and  endeavoring,  in  a  violent  manner,  to  enter  the 
habitation  of  defendant,  for  the  purpose  of  assaulting  or  offering 
personal  violence  to  him,  or  to  any  member  of  his  family  being 
therein,  then  the  killing  would  be  justifiable,  and  the  jury  should 
find  the  defendant  not  guilty. 

If  the  jury  believe,  from  the  evidence,  that  just  prior  to  his 
death  the  deceased  attempted,  in  a  violent  manner,  to  enter  the 
dwelling  of  the  defendant,  for  the  purpose  of  assaulting  him,  or 
offering  personal  violence  to  the  defendant,  being  in  said  dwell- 
ing, or  any  other  person  being  or  dwelling  therein,  and  that  the 
defendant,  in  reasonably  resisting  such  attempt  of  the  deceased, 
unintentionally  and  without  malice,  killed  him,  then  the  killing 
was  justifiable,  or  excusable,  and  the  jury  ought  to  acquit  the 
defendant. 

The  jury,  in  considering  whether  the  killing  was  in  defense  of 
habitation,  should  consider  all  the  circumstances  attending  tlu^ 
killing,  and  the  conduct  of  the  parties  at  the  time,  and  immedi- 
ately previous  thereto,  and  the  means  and  force  used  as  bearing 
upon  the  question  of  whether  the  killing  was  in  defense  of  hab- 
itation, in  good  faith,  or  whether  it  was  done  maliciously  and  in 
a  spirit  of  hatred  or  revenge.  Greschia  vs.  The  People,  53  111., 
295. 

Attack  Provoked  by  the  Defendant. — The  court  instructs  the  jury, 
that  a  party  charged  with  an  unlawful  or  deadly  assault  npon 
another,  cannot  avail  himself  of  the  claim  of  necessary  self- 
defense  if  the  necessity  for  such  defense  was  brought  on  by  his 
own  deliberate,  wrongful  act.  Adams  vs.  The  People,  47  111., 
376. 

Danger  Mnst  be  Reasonably  Apparent. — The  court  instructs  the 
jury,  that  although  they  should  find,  from  the  evidence,  that 
the  said  A.  B.,  and  the  defendants,  got  into  a  quarrel  at  the  time 
in  question,  and  that  the  said  A.  B.  followed  the  defendant  up 
in  a  threatening  manner,  still,  the  defendant  would  have  no 
right  to  assault  the  said  A.  B.  with  a  deadly  weapon  in  a  man- 


532  INSTUUCTIONS 

nev  calculated  to  take  life,  or  do  great  bodily  injury,  unless  the 
circumstances  were  such  as  to  lead  a  reasonable  person  to  l)e- 
lieve  that  such  an  assault  was  necessary,  on  tlie  })art  of  the  said 
defendant  in  self-defense,  to  prevent  receiving  a  great  bodily 
injui-y  liiniself. 

The  court  instructs  the  jury,  that  if  a  man  kills  another 
through  mere  cowardice,  or  under  circumstances  which  are  not, 
in  the  opinion  of  the  jury,  sufficient  to  induce  a  reasonable  and 
well-grounded  belief  of  danger  to  life,  or  of  great  bodily  harm, 
in  the  mind  of  an  oi-dinarily  coui-ageous  man,  the  law  will  not 
justify  the  killing  on  the  gi-ound  of  self-defense. 

If  the  jury  believe,  from  the  evidence,  that  defendant  had  no 
reason  to  believe  that  deceased  intended  to  take  his  life,:  or  to 
inflict  on  him  any  great  bodily  harm,  or  to  do  anything  more 
than  to  have  a  fair  fight,  and  that  defendant  struck  the  fatal  blow 
in  revenge,  or  in  a  reckless  spirit,  the  defendant  is  not  entitled 
to  claim  exemption  from  punishment  on  the  ground  that  the  kill- 
ing was  in  self-defense. 

That  no  one  has  a  right  to  kill  another,  even  in  self-defense, 
unless  such  killing  is  apparently  necessary  for  such  defense. 
Before  a  person  can  justify  taking  the  life  of  a  human  being, 
on  the  ground  of  self-defense,  he  must,  when  attacked,  employ 
all  reasonable  means  within  his  power  consistent  M-ith  his  safety 
to  avoid  the  danger  and  avert  the  necessity  for  the  killing. 

Reasonable  Doubt  as  to  Apijarent  Daiiiror. — The  jury  are  instiMictcd, 
that  if,  from  the  evidence,  they  have  any  rcasonaldo  doubt  as 
to  whether  the  defendant,  at  the  time  of  the  striking,  was  un- 
der reasonable  apprehension  and  honest  fear  that  the  deceased 
intended  and  M'as  about  to  inflict  upon  him  great  bodily  harm, 
and  that  he  fired  the  shot  under  that  belief,  and  in  self-defense, 
then  the  jury  must  acquit  the  defendant.  Lavihi'  vs.  Tlte 
People,  74  111.,  2-30. 

The  jury  ai-e  instructed,  that  if  there  is,  in  their  minds,  any 
reasonable  doubt  whether  the  defendant  had  reason  to  believe, 
and  did  believe  Mhen  ho  struck  the  fatal  blow;  if  you  find  that 
lie  did  strike  such  l)low,  that  ho  was  acting  in  necessary  self- 
defense  to  save  his  own  life,  or  to  prevent  receiving  great  l)od- 
ily  harm,  then  you  sb.o:;ld  give  the  defendant  the  benefit  of  sucb 
doubt  and  find  him  not  guiltv. 


IN    CRIMINAL    CASES. 


LARCENY. 


533 


Larceny  Defined. — The  court  instructs  the  jury,  that  larceny  is 
the  felonious  stealing,  taking  and  carrying  away  of  the  personal 
goods,  money,  bond,  bill,  note,  or  other  personal  property  of 
another. 

Every  Material  Allegation  Must  be  Proved. — Tlie  court  instructs  the 
jury,  that  in  order  to  warrant  a  conviction  in  a  criminal  case, it 
is  incumbent  upon  tlie  people  to  prove  to  the  satisfaction  of  the 
jury  the  truth  of  every  material  allegation  in  the  indictment  be- 
yond all  reasonable  doubt;  and  if,  after  a  consideration  of  all  the 
evidence  in  the  case,  the  jury  entertain  a  reasonable  doubt  as  to  the 
truth  of  any  one  of  these  material  allegations,  then  it  is  the  duty 
of  the  jury  to  give  the  defendant  the  benefit  of  such  doubt,  and 
return  a  verdict  of  not  guilty. 

Value  Must  be  Proved. — That  among  the  material  averments 
contained  in  the  indictment  necessary  to  be  proved  in  order  to 
warrant  a  conviction,  is  the  one  that  the  property  alleged  to  have 
been  stolen  had  some  value,  and  if  the  prosecution  have  failed  to 
prove,  affirmatively,  some  value  to  said  property,  then  it  is  the 
duty  of  the  jury  to  acquit  the  accused.  A  simj^le  statement  of 
counsel  as  to  the  value  of  the  property  will  not  suffice;  it  must 
be  proved  in  some  of  the  ways  known  to  the  law,  or  the  verdict 
should  be  not  guilty. 

Name  of  the  Person  Injured  Must  be  Proved. — The  court  instructs 
the  jury,  that  it  is  essential  in  all  criminal  prosecutions,  that  the 
name  of  the  party  injured  should  be  proved,  as  charged  in  the 
indictment;  and,  if  the  proof  shows  in  this  case,  that  the  prop- 
erty stolen  belonged  to  C.  B.  and  not  to  A.  B.,  as  charged  in  the 
indictment,,  the  jury  must  acquit  the  defendant. 

That  it  is  necessary  for  the  pi-osecution  to  prove  the  owner- 
ship of  the  property,  as  alleged  in  the  indictment;  and,  unless 
the  jury  believe,  from  the  evidence,  that  the  said  A.  B.  was  the 
owner  of  the  (Ac>/'S(?),  mentioned  in  the  indictment,  the  jury  must 
find  the  defendant  not  guilty. 


IXSTRUCTIOXS 


Special  Property  Sufflcient. — As  to  the  ownership  of  the  property, 
tlie  court  instructs  the  jury,  that  if  the  said  0.  D.  had  the  actual 
care,  custody  and  right  to  use  the  said  {hoi\se),  and  was  in  the 
actual  possession  at  the  time  of  the  alleged  taking,  not  as  the 
agent  or  servant  of  the  real  owner,  this  would  be,  for  the  pur- 
]H)ses  of  this  trial,  sufficient  evidence  of  ownership  to  sustain  the 
alleiratiou  in  the  indictment,  that  he  was  the  owner. 
[As  to  Special  Property,  see  Malicious  Mischief.} 

Criminaliu^  Cii-cumstauces. — If  the  jury  l)elieve,  from  the  evi- 
dence, beyond  a  reasonable  doubt,  that  the  prosecuting  witness, 
A.  B.,  had  money  in  his  possession,  of  the  kind  and  character 
mentioned  in  the  indictment,  and  that  the  same  was  stolen  from 
him,  in  manner  and  form  as  charged  in  the  indictment,  and  that 
the  defendant  had  an  opportunity  to  steal  the  same,  at  and  about 
the  time  it  is  alleged  to  have  been  stolen,  and  that  shortly  there- 
after the  defendant  was  seen  to  be  spending  the  same  kind  of 
money  lavishly,  and  for  articles  of  ornament  and  luxury,  appai-- 
ently  unsuited  to  his  circumstances  and  condition  in  life,  then 
these  are  circumstances  tending  to  show  the  guilt  of  the  defend- 
ant, and  should  be  considered  l)y  the  jury  in  connection  with  all 
the  other  evidence  in  the  case,  in  determining  the  guilt  or  inno- 
cence of  the  defendant,  unless  he  has  given  a  satisfactory  account 
of  how  he  obtained  the  money  which  he  was  so  spending. 

Person  Having  Possession  of  Property  Must  be  Produced. — Although 
the  jury  may  believe,  from  the  evidence,  beyond  a  reasonable 
doubt,  that  the  said  A.  B.  was  the  owner  of  the  property  in 
question,  at  the  time  of  the  alleged  taking;  yet,  if  the  jury  fur- 
ther believe,  from  the  evidence,  that  the  said  {horse)  was,  at  the 
time  it  is  alleged  to  have  l>cen  stolen,  in  the  actual  possession  of 
one  C.  J).,  and  under  his  exclusive  control  at  the  time,  and  that 
it  was  in  the  power  of  the  prosecution  to  have  produced  the  said 
C,  D.  as  a  witness  on  this  trial,  then  the  jury  should  accpiit  the 
defendant. 

It  is  a  rule  of  law,  that  when  property  is,  by  the  owner,  placed 
in  the  care  and  custody  and  under  the  control  of  another,  and 
such  property  is  alleged  to  have  been  stolen  from  the  possession 


IN    CRIMINAL    CASES.  535 

of  such  other  person,  then,  if  it  is  in  the  power  of  the  prosecu- 
tion to  produce  the  person,  so  having  such  possession,  as  a  wit- 
ness, he  must  be  produced,  in  order  to  sliow  that  tlie  property 
was  not  taken  with  his  consent;  and,  in  such  case,  the  evidence 
of  such  person  cannot  be  supplied  by  other  proof,  nor  can  the 
accused  be  convicted  without  it.  2  Russ.  on  Crini.,  122;  titate 
vs.  Osborne^  28  Iowa,  9. 

Taking-  Must  be  with  Felonious  Intent. — The  court  instructs  tlie 
jury,  that  every  unlawful  taking  of  the  goods  and  chattels  of 
another,  without  his  knowledge  or  consent,  does  not  amount  to  a 
larceny;  to  make  it  such,  the  taking  must  be  such,  and  accompa- 
nied by  such  circumstances,  as  show  a  felonious  intent;  that  is, 
an  intent  to  steal  the  property. 

Even  though  the  jury  may  believe,  from  the  evidence,  that 
the  money  in  question  was  taken  from  the  said  A.  B.  contrary 
to  his  will  and  without  his  knowledge;  still,  if  the  evidence  shows 
that  the  defendant,  when  he  obtained  the  money,  did  not  intend 
to  steal  it,  but  took  it  only  for  safe-keeping,  intending  to  return 
the  same  to  the  owner,  then  the  jury  should  acquit  the  defendant. 

The  court  instructs  the  jury,  that  every  unlawful  taking  and 
carrying  away  of  the  personal  goods  of  another,  will  not  amount 
to  larceny;  to  constitute  larceny  a  felonious  intent  must  be 
shown  to  have  accompanied  the  original  taking;  that  is,  the 
goods  must  have  been  taken  with  an  intent  to  steal  the  same. 
State  vs.  Wood,  4G  la.,  116. 

Taken  Under  Claim  of  Rij?lit  or  Title. — The  jury  are  further  in^ 
structed,  that,  although  they  may  believe,  from  the  evidence,  be- 
yond a  reasonable  doubt,  that  the  defendant  took  and  carried 
away  the  property  in  question,  as  charged  in  the  indictment; 
still,  if  they  further  believe,  from  the  evidence,  that  the  defend- 
ant took  the  property  under  a  claim  of  title  honestly  entertained, 
then  he  is  not  guilty  of  larceny;  and,  in  such  case,  it  makes  no 
difference  whether  he  did  in  fact  have  any  legal  right  to  tlie 
possession  of  the  property,  or  not.  State  vs.  Bond,  8  Clarke, 
(la.),  540 ;  2  Whar.  on  Crim.  Law,  §  1770. 

That  the  intent  being  necessary  to  complete  the  crime  of  lar- 
ceny, if  a  person,  under  the  honest  impression  that  he  has  a  right 


53G  INSTRUCTIONS 

to  the  property,  said  to  have  been  stolen,  takes  it  into  his  posses- 
sion mider  snch  claim  of  right,  this  would  not  be  larceny;  and, 
in  this  case,  if  the  prosecution  have  failed  to  prove,  beyond  a 
reasonable  doubt,  that  the  property  in  question  v\'as  taken  by  the 
defendant,  knowing  at  the  time  that  it  was  the  property  of  an- 
other, and  with  the  intention  of  feloniously  converting  the  same 
to  his  own  use,  then  it  is  your  duty  to  a;*  juit  the  defendant. 

The  court  further  instructs  the  jury,  that  where  property  is 
taken  under  a  claim  of  right,  and  there  be  any  fair  pretence  of 
right  to  the  property,  and  the  jury  believe,  from  the  evidence, 
that  such  claim  is  made  in  good  faith,  then  it  is  the  duty  of  the 
jury  to  find  the  defendant  not  guilty. 

That,  although  you  may  believe,  from  the  evidence,  that  the 
defendant  would  be  liable  in  an  action  of  trespass  for  the  value 
of  the  property  in  question;  still,  unless  the  prosecution  have 
proved,  beyond  a  reasonable  doubt,  that  the  defendant  feloniously 
stole  the  same,  then  you  nuist  acquit  the  defendant. 

Possession  Obtained  by  Fraud  wUh  Intent,  Etc. — If  the  juiy  believe, 
l)e\()n(l  a  reasonable  doubt,  that  the  defendant,  at  or  al)out  the 
time  stated  in  the  indictment,  (at  the  saloon  of  E.  M.,)  in  this 
county,  by  any  fraudulent  means  or  representation,  induced  the 
said  A.  B.  to  take  out  his  money,  with  the  intent,  on  part  of  the 
defendant,  at  the  time  to  steal  said  moiu'v,  and  that  in  conse- 
quence thereof,  the  said  A.  1>.  did  take  out  his  money,  and  that 
in  pursuance  of  such  intent,  the  said  defendant  did  then  and 
there  feloniously  steal,  take  and  cai-ry  away  said  money,  in  man- 
ner and  form  as  charged  in  the  indictment,  then  the  jury  should 
find  the  said  defendant  guilty  of  larceny. 

If  the  jury  believe,  from  the  evidence,  beyond  a  reasonable 
dou])t,  that  the  defendant  obtained  the  possession  of  the  money, 
described  in  the  in(li(;tment,  fraudulently  and  with  an'  intent 
then  and  there  to  steal  the  same,  and  of  feloniously  converting 
the  same  to  his  own  use,  in  mamu'r  and  form  as  charged  in  the 
indictment,  then  this  in  law  would  amount  to  a  larceny,  notwitli- 
standing  the  said  A.  B.  knowingly  and  intentionally  parted  with 
the  ]K)Ssession  of  the  money.  3  Greenl.  on  Evi.,  §  160;  2  Whar. 
un  Criui.  Law,  §  lTfc'7. 


IN    CRIMINAL    CASES.  537 

Money  Must  be  Proved  to  be  genuine. — Tlie  jury  are  instructed,  that 
to  warrant  a  conviction  under  this  indictment,  the  jury  must  be- 
lieve, from  the  evidence,  that  one  or  more  of  the  treasury  notes, 
bank  bills,  or  other  money,  alleged  to  have  been  taken  by  the  de- 
fendant, was  a  genuine  bill  or  note;  and,  if  the  jury  find  that 
the  people  have  failed  to  produce  any  proof  of  the  genuineness  of 
such  treasury  note,  bank  l)ill,  or  other  money,  and  that  there  is 
no  such  evidence  before  the  jury,  then  the  jury  should  find  the 
defendant  not  guilty.      Collins  vs.  The  People^  39  111.,  233. 

Possession  of  Stolen  Property. — The  court  instructs  the  jury,  that 
the  possession  of  stolen  property  recently  after  the  theft  by  the 
person  charged,  if  unexplained,  is  a  circumstance  tending  to 
prove  his  guilt;  and  if  the  jury  believe,  from  the  evidence  that 
the  defendant  was  found  with  tlie  stolen  property  in  his  posses- 
sion, then,  in  determining  the  weight  to  be  attached  to  that  cir- 
cumstance, as  tending  to  prove  guilt,  the  jury  shall  consider  all 
the  circumstances  attending  such  possession — the  proximity  of 
the  place  where  found  to  tlie  phice  of  the  larceny ;  the  lapse  of 
time  since  the  property  was  taken;  whether  the  property  was 
concealed ;  whether  the  party  admitted  or  denied  the  possession ; 
the  demeanor  and  character  of  the  accused ;  whether  other  per- 
sons had  access  to  the  place  where  the  property  was  found.  All 
these  circumstances,  so  far  as  they  have  been  proved,  are  profiler 
to  be  taken  into  account  by  the  jury  in  determining  how  far  the 
possession  of  the  property  by  the  accused,  if  it  has  been  proved, 
tends  to  show  his  guilt.  3  Greenl.  Evi.,  §  32;  Conkwright  vs. 
The  People,  35  111.,  204;  State  vs.  Hodge,  50  N.  H.,  510. 

The  court  instructs  the  jury,  that  the  possession  of  recently 
stolen  property  is  usually  regarded,  in  law,  as  a  criminating  cir- 
cumstance, strongly  tending  to  show  that  the  possessor  stole  the 
property,  unless  the  facts  and  circumstances  surrounding  or  con- 
nected with  such  possession,  or  other  evidence,  explains  or  shows 
such  possession  might  have  been  acquired  honestly. 

In  this  case,  if  the  jury  believe,  from  the  evidence,  beyond  a 
reasonable  doubt,  that  the  property  described  in  the  indictment 
was  stolen,  and  that  the  defendant  was  found  in  the  possession 
of  the  property  soon  after  it  was  stolen,  then  such  possession  is, 
ill  law,  a  strong  criminating  circumstance,  tending  to  show  the 


538  INSTRUCT IONS 

o;iiilt  of  the  defemliuit,  uiik-ss  tho  evidence,  and  the  facts  and 
(tircunistances  proved,  show  that  he  may  have  come  honestly  hi 
possession  of  the  same. 

Possession  Explained. — The  court  instructs  the  jury,  tliat  while 
possession  of  stolen  property  recently  after  the  theft,  if  unex- 
plained, is  a  circumstance  tending  to  show  the  guilt  of  the 
possessor,  still,  in  this  case,  if  the  jury  believe,  from  the  evi- 
dence, that  the  defendant  bought  the  property  in  question  at, 
etc.,  openly  and  publicly,  and  unconnected  with  any  suspicious 
circumstances  of  guilt,  this  is  a  satisfactory  account  of  his  pos- 
session of  the  property,  and  removes  every  presumption  vi  guilt 
growing  out  of  such  possession.  Jones  vs.  Tlie  People^  Yl  111., 
259. 

LARCENY    AS    EATI.El': E>rCEZZLE:\IENT. 

Meaning  of  the  Terms. — The  court  instructs  the  jury,  that  the 
meaning  of  the  word  embezzlement  is  the  fraudulently  removing 
or  secreting  personal  property,  with  which  a  party  has  been 
entrusted,  for  the  purpose  of  ai)plying  it  to  his  own  use.  There 
can  be  no  embezzlement,  within  the  legal  meaning  of  the  word, 
unless  the  party,  when  he  takes  the  property  or  money,  does  it 
secretly,  with  an  intent  to  defraud  the  owner. 

By  Bailee  — Felonious  Intent  Necessary. — That  to  constitute  the 
crime  of  larceny  a  felonious  intention,  that  is  an  intention  to 
steal,  must  always  exist.  And,  under  our  statute,  making  the 
conversion  of  property  to  his  own  use  by  a  bailee  larceny,  the 
crime  is  not  made  out  by  merely  showing  a  conversion  of  the 
property  to  his  own  use  by  the  bailee,  but  it  must  further  appear 
that  such  conversion  was  with  an  intent  to  steal  the  same. 
Phelps  vs.  The  People,  55  111.,  oo4. 

Taken  with  Intent  to  Repay  Himself. — If  the  jury  believe,  from 
the  evidence,  that  the  defendant  did  take  and  convert  to  his  own 
use  money  belonging  to  the  said  A.  B.,  and  wdiich  came  into  his 
liands  as  the  clerk  of  the  said  A.  B.,  still,  if  the  jury  further 
believe,  from  the  evidence,  that  when  defendant  so  took  said 


IN    CRIMINAL    CASES.  539 

money,  he  honestly  and  in  good  faith  intended  and  expected  to 
replace  said  money,  and  make  the  same  good  to  the  said  A.  B., 
then  the  jury  should  not  find  the  defendant  guilty  under  this 
indictment. 

No  Felonious  Intent,  When. — If  the  jury  believe,  from  the  evi- 
dence, that  the  defendant,  as  clerk  or  salesman  of  the  said  .V.  B., 
received  moneys  belonging  to  him,  and  honestly  and  fairly 
charged  himself  with  the  same  on  the  account  books  kept  for 
that  purpose,  and  afterwards  used  the  money  for  his  own  ben- 
efit, without  the  knowledge  of  the  said  A.  B.,  never  attempting 
to  conceal  the  fact,  but  acknowledged  the  same  when  spoken  to 
about  it,  and  promised  to  repay  it  as  soon  as  he  was  able,  these 
facts  are  all  proper  to  be  taken  into  account  by  the  jury,  with 
all  the  other  evidence  in  the  case,  in  determining  the  question 
whether  the  defendant  used  the  money  with  any  felonious  or 
fraudulent  intent;  and  if,  upon  a  consideration  of  all  the  facts 
and  circumstances  proved,  the  jury  have  any  reasonable  doubt 
of  such  felonious  and  fraudulent  intent,  they  should  find  the 
defendant  not  guilty.     2  Bishop  on  Grim.  Law,  §  300, 

Felonious  Intent  Necessary. — The  jury  are  instructed,  that  the 
taking  or  conversion  of  personal  property  which  renders  a  per- 
son guilty  of  simple  larceny,  or  of  embezzlement,  is  a  feloni- 
ously taking  or  conversion,  and  before  you  can  convict  the 
defendant  in  this  case,  you  must  be  satisfied,  from  the  evidence, 
beyond  a  reasonable  doubt,  that  the  property  mentioned  in  the 
indictment,  or  some  part  of  it,  was  converted  to  his  own  use  by 
the  defendant,  with  an  intention,  at  the  time,  to  steal  the  same. 

That  to  constitute  larceny  by  a  bailee,  it  is  absolutely  neces- 
sary that  it  shall  appear,  from  the  evidence,  beyond  a  reasona- 
ble doubt,  not  oidy  that  the  property  was  converted  by  the 
defendant  to  his  own  use,  but  also  that  at  the  time  of  conversion 
the  party  intended  feloniously  to  steal  the  same. 


540  INSTRUCTIONS 


MALICIOUS    MISCHIEF. 

Malicious  mschief. — The  jury  aix'  iiistnictcd,  tliat  in  this  case 
the  dofcndant  is  charged  with  liaving  williiUy  and  inalicioiisly, 
etc.;  and  if  the  jury  believe,  from  the  evidence,  beyond  a  rea- 
sonable doubt,  that  the  defendant  committed  the  crime,  in 
maimer  and  form  as  charged  in  the  indictment,  within  {eujhteeii 
w^on^;/^^s)  before  the  finding  of  the  iiidictuR-nt  in  this  case,  then 
the  jury  should  find  the  defendant  guilty. 

Malice,  How  Proved. — If  the  jury  believe,  from  the  evidence, 
beyond  a  reasonable  doubt,  that  the  defendant  inflicted  the 
injury  upon  the  property  in  question,  in  numuer  and  form  as 
char<'-ed  in  the  indictment,  wilfullv  and  wautoulv,  and  without 
any  reasonable  excuse  being  given  therefor,  then  the  law  will 
imply  malice  against  the  owner  of  the  property.  2  Whar.  Orini. 
Law,^  7  Ed.,  2008. 

Ownership,  How  Proved. — When  personal  propeity  is  left  in  the 
care  and  custody,  and  under  the  control  of  a  person  not  the 
absolute  ownei-,  but  having  a  legal  right  to  such  possession,  not 
as  agent  or  servant  of  such  ownei-,  is  injured,  the  person  having 
such  control  and  possession  has  such  an  interest  in  the  propei'ty 
as  will  authorize  the  property  to  be  laid  in  the  indictment,  for 
maliciously  injuring  the  same,  as  the  property  of  the  person  so 
having  it  in  charge.  2  AVhar.  Grim.  Law,  T  Ed.,  1818;  People 
vs.  lIon\  7  Barb.,  9. 

If  the  jury  believe,  from  the  evidence,  beyond  a  reasonable 
doubt,  that  the  proi)erty  in  (piestion  was,  at  the  time  of  the 
alleged  iujury,  either  the  absolute  property  of  the  said  A.  B.,  or 
that  it  was  left  in  his  possession  by  the  owner,  with  the  right  to 
use  and  control  the  same,  and  with  an  absolute  right  to  the  pos- 
session thereof  at  the  time  of  the  alleged  iujury,  then  the  owner- 
ship of  the  property  is  properly  laid  in  the  indictment,  as  the 
property  of  the  said  A.  15. 

O^vnership  Must  be  Proved  as  Alleged. — That  the  ])roperty  in  the 
animal  injured  is  laid   in  the  said  A.  B.,  and  it  is  nuitcrial  for 


IN    CRIMINAL    CASES.  541 

the  prosecution  to  prove  that  he  had  a  general  or  special  prop- 
erty in  the  animal;  and  unless  this  has  been  proved  to  the 
exclusion  of  every  reasonable  doubt,  the  defendant  is  entitled  to 
an  acquittal. 

Injury  Must  be  Proved  as  Alleged. — If  the  jury  believe,  from  the 
evidence,  that  the  animal  described  in  the  indictment  was  injured 
by  some  one,  in  some  manner,  this  will  not  authorize  the  jury  to 
find  the  defendant  guilty,  unless  they  are  satisfied,  beyond  a 
reasonable  doubt,  that  the  injury  was  inflicted  by  the  defendant, 
and  in  the  manner  described  in  the  indictment. 

If  the  jury  believe,  from  the  evidence,  that  the  animal  might 
reasonably  have  been  injured  by  some  other  person,  or  in  some 
other  manner  'than  that  charged  in  the  indictment,  this  is  suffi- 
cient to  raise  a  reasonable  doubt,  and  the  defendant  should  be 
acquitted. 

Malice  Must  be  Proved. — This  being  an  indictment  for  malicious 
mischief,  malice  is  a  necessary  element  to  be  proved,  or  made  to 
appear  from  the  facts  or  circumstances  proved.  Without  this 
ingredient  the  crime  is  not  complete,  and  the  act  complained  of 
would  be  only  a  trespass,  for  which  the  party  injured  would  be 
compelled  to  resort  to  a  civil  action  for  redress. 

Malice  Against  tlie  Owner  Mnst  be  Shown. — That  the  malice  neces- 
sary to  constitute  this  offense  must  exist  against  the  owner  of  the 
property,  or  against  some  one  having  a  general  or  special  interest 
therein.  Malice  against  the  animal,  if  proved,  will  not  warrant 
a  conviction.  State  vs.  Endou\  10  la.,  115;  2  Bishop  Crim. 
Law,  §  964;  TJ.  S.  vs.  Gideon,  1  Minn.,  292.  Contra— Moshi/ 
vs.  State,  28  Ga.,  190. 

That  in  order  to  convict  the  defendant  upon  this  indictment, 
the  prosecution  must  prove,  to  the  satisfaction  of  the  jury,  that 
the  defendant  knew  or  supposed  the  animal  in  question  belonged 
to  the  said  A.  B.,  and  so  knowing  or  supposing,  wilfully  and 
deliberately  injured  the  same,  through  malice  towards  the  said 
A.  B, ;  and  unless  this  has  been  done  it  is  your  duty  to  acquit 
the  defendant. 


542  INSTRUCT  I  o.vs 

If  llic  jury  liflio\-c\  froiii  the  evidenco,  tliat  tlic  (Icfemlaiit 
shot  and  iiijiircil  the  animal  in  (jiu'stion,  in  manner  and  form  as 
eharged  in  the  indictment,  recklessly  and  want(jidy,  anil  without 
any  provocation,  then  the  law  will  presume  malice  against  the 
owner,  and  the  jury  should  find  the  defendant  guilty.  Moshy 
vs.  State,  28  Ga.,  100. 


PERJURY. 

Note. — Pei-jury  assigned  upon  tostimony,  given  by  defendant  on  u  trial 
before  a  justice  of  tlie  peace,  in  swearing  tliat  ho  "  bougiit  the  liorse  of  A. 
B.,  and  paid  $100  cash  for  it  at  the  time.'' 

Charge  Must  be  Proved  in  Manner  and  Form,  Etc. — If  the  jury  believe, 
from  tlie  evidence,  heyond  a  reasonable  doubt,  that  the  defiMid- 
ant  knowingly  and  willully  testified  falsely,  in  manner  and  form 
as  charged  in  the  indictment  in  this  case,  then  the  jury  should 
find  the  defendant  guilty. 

Proor  to  Authorize  ronvlotion. — If  the  jury  believe,  from  the  evi- 
dence, beyond  a  reasonable  doubt,  that;  some  time  on  or  about, 
etc.,  uj^on  the  trial  of  an  action  of  {reple^nn),  in  which  the  value 

of  the  i^roperty  did  not  exceed  $ ,  and  then  pending  before 

one  R.  L.,  an  acting  justice  of  the  peace  of  this  county,  the  said 
defendant  was  sworn  as  a  witness,  by  said  justice,  and  then  tes- 
tified that  he  bought  the  {horse)  of  A.  B.,  and  paid  §100  in 
cash  for  it  at  the  time,  in  manner  and  form  as  charged  in  the 
indictment;  and  if  the  jury  further  believe,  from  the  evidence, 
beyond  a  reasonaljle  doubt,  that  whether  he  had  so  bought  the 
{horse)  of  A.  B.,  and  paid  $100  in  cash  for  it  at  the  time,  was 
a  material  question  on  such  trial,  and  that  such  testimony  was 
untrue  and  false,  and  ku(nvn  to  the  defendant  to  be  untrue  and 
false  at  the  time  he  gave  such  testimony,  then  the  jury  should 
find  the  defendant  guilty. 

Materiality  Snflleient,  >Vlien.— The  jury  are  instructed,  as  a  matter 
of  law,  that  to  I'cndcr  testimony  material  in  a  case  it  is  not 
necessary  that  it  shoidd  lir.ir  directly  upon  the  main  issue  in  the 
case;  it  is  sufficient  if  it  is  material  to  any  cpiestion  arising  upon 


IN    CRIMINxiL    CASES.  543 

the  trial,  and  such  as,  if  it  were  true,  might  properly  influence 
the  justice  or  the  jury  before  whom  the  case  is  being  tried  in 
any  matter  affecting  the  rights  of  the  parties.  2  Bishop  on  Crim. 
L.,  §  994.  3  Greenl.  Evi.,  §  195 ;  Cotn.  vs.  Grant,  116  Mass.,  IT. 
In  this  case,  if  the  jury  believe,  from  the  evidence,  beyond  a 
reasonable  doubt,  that  a  suit  was  being  tried  before  the  said  R. 
L.,  an  acting  justice  of  the  peace  in  this  county,  in  manner  and 
form  as  charo-ed  in  the  indictment,  and  also  that  one  of  the  ques- 
tions  which  arose  on  said  trial  was,  etc.  {or  that  any  witries.'^ 
testified  that,  etc.),  then  the  court  instructs  you,  as  a  matter 
of  law,  that  whether  the  said  defendant  bought  the  horse  of  A. 
B.,  and  paid  $100  in  cash  for  it,  at  the  time,  was  a  material 
question  on  said  trial,  and  if  the  jury  further  believe,  from  the  evi- 
dence, beyond  a  reasonable  doubt,  that  the  defendant  then  and 
there  was  sworn  as  a  witness  by  the  said  justice,  on  said  trial, 
and  testified  tliat,  etc.,  and  that  such  testimony  was  false,  and 
that  the  defendant  knew  it  to  be  false  when  he  so  testified,  then 
the  jury  should  find  the  defendant  guilty. 

One  Witness  Siiffleient,  When. — The  court  instructs  the  jury,  that 
as  to  each  and  all  of  the  material  averments  in  the  indictments, 
except  the  allegation  of  the  falsity  of  the  testimony  therein 
stated  and  set  forth,  they  may  be  proved  by  the  testimony  of  one 
witness  alone;  provided,  the  jury  are  satisfied,  beyond  a  reason- 
able doubt,  of  the  truth  thereof  by  the  testimony  of  such  wit- 
ness; and  as  regards  proving  the  falsity  of  such  testimony  the 
court  instructs  the  jury,  that  while  that  fact  cannot  be  established 
by  the  testimony  of  one  witness  alone,  it  is  not  absolutely  necessary 
that  it  be  established  by  the  testimony  of  two  witnesses;  it  may 
be  proved  by  the  testimony  of  one  witness  and  other  corroborat- 
ing facts  or  circumstances  corroborating  such  witness;  provided, 
the  jury  are  satisfied,  beyond  a  reasonable  doubt,  from  the  testi- 
mony of  such  witness,  and  such  corroborating  facts  and  circum- 
stances that  such  testiuK^ny  was  false  in  fact.  U.  S.  vs.  Wood, 
14  Peters,  430;  1  Greenl.  Evi.,  §  257;  State  vs.  Baymon,  20  la., 
583. 

Antliority  of  the  Officer  Must  be  Shown. — The  jury  are  further  in- 
structed, that  while  it  is  necessary  for  the  prosecution,  in  order 


54:4  INSTItrCTIONS 

to  warrant  a  coiivietioii  for  perjury,  tt)  show  that  the  person  ad- 
ministering the  oath  was  authorized,  by  law,  to  administer  oatlis, 
still,  if  it  be  shown,  by  the  evidence,  beyond  a  reasonable  doubt, 
that  the  oath  was  administered  ])y  a  person  who  was  then  an 
acting  justice  of  the  peace  in  and  for  the  county  where  tlie  oath 
was  administered,  tliis  is  suthcient  evidence  of  his  authority  to 
administer  the  oath,  if^/v' vs.  People,  42  111.,  307;  State  vs. 
Furlong,  20  Me.,  69;  Weston  vs.  Lumleij,  33  Ind.,  48G. 

Testimony  Alles^cd  Must  \w  rn.vcd. — Tlie  jury  are  further  in- 
structed, that  while  it  is  incumbent  up<»n  the  people,  in  order  to 
warrant  a  conviction,  to  prove,  as  one  of  the  material  averments 
in  the  indictment,  that  the  defendant  did  testify  to  one  or  more 
of  the  statements  of  testimony  contained  in  the  indictment,  still, 
it  is  not  necessary  that  they  sliould  be  proved  in  the  precise 
words  alleged ;  it  is  sufficient  if  they  are,  substantially,  proved 
in  language  and  effect  as  therein  stated.  People  vs  Warner,  5 
Wen.,  271;  3  Greenl.  Evi.,  §  193.  Taylor  vs.  State,  48  Ala., 
157. 

>'o  Reasouable  Grounds  of  Belief. — The  jury  are  instructed,  that 
while  false  swearing,  under  an  honest  belief  that  the  statements 
are  true,  is  not  perjury,  still,  the  jury  are  to  determine,  from  all 
the  evidence  in  the  case,  whether  such  honest  belief  existed;  and 
if  the  jury  believe,  from  the  evidence,  beyond  a  reasonable  doubt, 
that  the  defendant  swore  falsely,  as  charged  in  the  indictment, 
and  that  he  had  no  reasonable  grounds  for  believing  his  state- 
ments to  be  true,  and  did  not  honestly  and  in  good  faith  believe 
them  to  be  true,  then  he  is  guilty  of  perjury.  Johnson  vs.  The 
People,  etc.,  94  111.,  505;  aVrreonl.  Evi.,  §  200. 

Testimony  Must  l)e  Wilfully  and  Knowin^'ly  False. — That  although 
the  jury  may  believe,  from  the  evidence,  that  the  defendant 
testified  as  stated  in  said  indictment,  and  that  that  testimony  was 
false,  still,  if  the  jury  have  a  reasonable  dMubt  whether  the  de- 
fendant, knowingly  and  wilfully,  testified  falsely  in  giving  such 
testimony,  the  jury  should  find  the  defendant  not  guilty. 

The  court  further  instructs  the  jury,  that  to  wan-ant  a  verdict 
of  guilty  in  this  case  the   prosecution   must  establish,  by  evi- 


IN    CKIMINAL    CASES.  545 

dence,  to  the  satisfaction  of  the  jury,  beyond  a  reasonable  doubt, 
not  only  that  the  defendant  testified  on  the  occasion  referred  to, 
that,  etc.,  as  charged  in  the  indictment,  but  also  that  that  testi- 
mony was  false,  and  furthermore,  that  the  defendant  knew  it  to 
be  false,  or  had  no  good  reason  to  believe  it  to  be  true,  at  the 
time  he  testified. 

Official  Character  of  the  Justice  Must  be  Proved.— That  among  the 

material  averments  in  the  indictment  is  the  statement  that  the 
defendant  was  sworn  by  R.  L.,  that  the  said  E,.  L.  was  a  justice 
of  the  peace,  having  power  and  authority  to  administer  such 
oath;  the  averment  that  the  said  R.  L.  was  a  justice  of  the  peace, 
like  the  other  averments  in  the  indictment,  must  be  proved,  by 
the  evidence,  beyond  a  reasonable  doubt ;  and  although  this  may 
be  proved  by  showing  that  he  was  an  acting  justice  of  the  peace 
in  and  for  this  county — if  it  be  a  fact  that  he  is  so,  still,  this  fact 
must  be  established  by  proof;  and  it  is  not  sufficiently  proved, 
if  the  jury  find,  from  the  evidence,  that  it  is  only  shown  that  he 
acted  as  a  justice  in  the  trial  of  the  cause  set  out  in  the  indict- 
ment. 

That  the  Accused  was  Sworn  Must  be  Proved. — -That  to  authorize  a 
conviction  in  this  case  it  must  appear,  among  other  things,  that 
the  defendant  was  sworn,  as  a  witness,  before  giving  his  alleged 
testimony;  and  this  must  be  proved,  beyond  a  reasonable  doubt; 
and  if  the  jury  entertain  any  reasonable  doubt  as  to  whether  the 
defendant  was  affirmed  histead  of  being  sworn,  in  the  usual 
manner  before  testifying,  the  jury  should  find  the  defendant  not 
guilty.     Ilitesman  vs.  State,  48  Ind..  473. 

More  Than  One  Witness  Required. — If  the  jury  find  that  the  sev- 
eral witness  who  have  testified  for  the  prosecution  (or  the  wit- 
nesses, A.,  B.  and  C),  have  each  testified  to  separate  and  distinct 
facts  or  circumstances,  then  such  testimony  must  be  considered 
by  the  jury  as  the  testimony  of  a  single  witness  upon  each  spe- 
cific point  testified  to  by  them;  and  if  the  jury  further  believe, 
from  the  evidence,  that  only  one  of  said  witnesses  has  testified 
to  facts  tending  to  show  the  falsity  of  the  testimony  set  forth  in 
the  indictment,  and  upon  which  the  perjury  is  assigned,  then 

35 


546  INSTKUCTIONS 

the  prosecution  has  failed  to  prove  the  falsity  of  such  testimony 
as  required  by  law,  unless  the  jury  further  find,  from  the  evi- 
denee,  that  the  testimony  of  such  witness  has  been  corroborated 
upon  tluit  point  by  other  facts  or  circumstances  proved  on  the 
trial.  State  \&.  Heed,  b7  Mo.,  252;  2  Wharton  Crim.  Law,  § 
2270;  State  \s.  Raymond,  20  la.,  582;  Crasen  vs.  The  State^ 
10  Ohio,  St.  258;  Hendricks  vs  State,  26  Ind.,  493. 

The  jury  are  further  instructed  by  the  court,  that  the  law  pre- 
sumes the  testimony  of  the  defendant  set  out  in  tlie  indict- 
ment to  be  true  and  of  equal  value  to  the  testimony  of  any 
other  one  witness;  and  in  order  to  convict  the  defendant  of  per- 
jury the  people  must  satisfy  the  jury,  beyond  a  reasonable  doubt, 
of  its  falsity,  and  that  by  the  testimony  of  more  than  one  wit- 
ness, or  by  the  testimony  of  one  witness  and  other  proofs  tend- 
ing to  corroborate  such  witness;  and  unless  the  falsity  of  the 
testimony  alleged  in  the  indictment  has  been  established  by  an 
amount  of  evidence  greater  than  the  testimony  of  one  witness 
bearing  upon  that  point,  the  jury  must  find  the  defendant  not 
guilty,  whatever  may  be  their  opinion  regarding  his  guilt  or 
innocence. 

Every  Material  Allesration  Must  be  Proved. — That  before  the  jury 
will  be  warranted  in  finding  the  verdict  of  guilty  in  this  case, 
they  must  1)0  satisfied,  beyond  a  reasonable  doubt,  from  the  evi- 
dence introduced  before  them,  that  the  defendant  was  sworn  as 
a  witness  by  E,.  L.,  on  the  trial  of  an  action  of  {replevin)  pend- 
ing before  him,  as  an  acting  justice  of  the  peace  of  this  county, 
wherein  A.  was  plaintiff  and  B.  was  defendant — that  the  value 

of  the  property  in  question,  in  said  suit,  did  not  exceed  S ; 

that  upon  such  trial  the  defendant  testified  upon  oath  that  he 
bought  the  horse  of  one  A.  B.,  and  paid  $100  in  ca'sh  for  it  at 
the  time;  that  whether  he  had  so  bought  the  horse  was  a 
nniterial  question  on  that  trial;  that  such  testimony  was  false, 
and  that  tiie  defendant  knew  it  to  be  false  at  the  time  he  so  testi- 
fied; and,  unless  the  prosecution  ha\e  jiroved  each  and  all  of  the 
matters  above  enumerated,  beyond  a  reasoiuible  doubt,  l)y  evi- 
dence introduced  before  the  jury,  the  jury  nnist  find  the  defend- 
ant not  guilty.  2  \Vhart<)n,  Crim.  Law,  §  2211;  Pajikey  \?,. 
^fate,  1  Scam.,  80;  Montgomery  vs.  State,  10  Ohio,  220; 
State  vs.  Fassett,  16  Conn.,  457. 


^  IN    CRIMINAL    OASES.  547 

Materiality  Must  be  Shown. — The  jury  are  further  instructed,  that 
among  the  material  averments  in  the  indictment  is  the  statement, 
that  wliether  the  said  defendant  had  bought  the  horse  therein  re- 
ferred to,  of  A.  B.  and  paid  $100  for  it  in  cash  at  the  time,  became 
a  material  question  on  said  trial;  and  to  warrant  a  conviction  in 
this  case,  the  fact  of  such  materiality  must  be  established  to  the 
satisfaction  of  the  jury,  beyond  a  reasonable  doubt;  and  if  after 
a  careful  consideration  of  all  the  evidence,  and  in  view  of  the 
principles  of  law  given  you  iy  these  instructions,  you  entertain 
any  reasonable  doubts  as  to  whether  the  fact  above  stated  did 
become  material  on  said  trial,  you  should  find  the  defendant 
not  guilty.  2  Bishop,  Crim.  Law,  §  994;  Bulloch  vs.  Koon,  4 
Wen.,  531;  State -.^?,.  Thrift,  30  Lid.,  211;  Wood  vs.  Peoj^le,  59 
K  y.,  117:  State  vs.  Aikens,  32  la.,  403. 

Test  of  Materiality. — That  the  true  test  of  whether  the  alleged 
testimony  of  the  defendant  was  material  on  said  trial  is  this: 
"Was  it  of  such  a  character  that,  if  true,  it  should  properly  influ- 
ence the  action  of  the  justice  or  the  jury  on  the  trial  in  any  mat- 
ter affecting  the  rights  of  the  parties  to  that  suit;  and  if  the  jury 
find,  from  the  evidence,  that  the  alleged  testimony  could  not 
properly  influence  the  action  of  the  justice,  or  the  jury,  in  any 
matter  affecting  the  rights  of  the  parties  to  the  suit,  then  it  is 
wholly  immaterial  whether  it  was  true  or  false,  and  the  jury 
should  find  the  defendant  not  guilty.  2  Bishop  Crim.  Law,  § 
994;  State  vs.  Keenan,  8  Rich.,  456 ;  State  v.  Shupe,  16  la.,  36; 
State  vs.  Lavalleij,  9  Mo.,  824;  3  Greenl.  Ev.,  §  195. 


548  I  N  S  T  K  U  C  T I  0  N  S 


RAPE. 

Rape  Dettiied— Consent  Obtained  by  Tlireats-(i?i/  Statute). — The  court 
instriK'ts  the  jurv.,  that  nipe  is  the  carnal  knowledge  of  a  female, 
forcibly  and  against  her  will,  and  where  threats  of  i)ersonal  vio- 
lence are  made  to  overcome  her  will,  and  she  believes  that  her 
person  is  in  danger  from  such  threats,  and  is  induced  thereby  to 
submit  to  the  will  of  the  person  making  such  threats,  and  he  has 
sexual  connection  with  her,  then  the  law  considers  such  carnal 
knowledge  as  having  been  forcibly  had  and  against  the  will  of 
the  female. 

Submission  Through  Fear. — The  court  instructs  the  jury,  that 
where  a  female  submits  to  sexual  intercourse  through  fear  of 
personal  violence,  and  to  avoid  the  infliction  of  great  personal 
injurv  upon  herself,  then  such  carnal  intercourse  is  indictable 
and  punishable  as  a  rape. 

Comphiining  to  Others. — If  the  jury  believe,  from  the  evidence, 
tliat  the  prosecuting  witness  told  her  {husband)  of  the  assault, 
alleged  to  have  been  made  on  her,  at  the  earliest  opportunity, 
then  that  is  a  corroborating:  circumstances  tending  to  sustain  the 
truth  of  her  statements.  State  vs.  JViles,  47  Vt.,  82;  Pejfcrliny 
vs.  State,  40  Texas,  48G. 

That  in  this  class  of  cases  the  main  facts  can  usually  be  proved 
only  l)y  the  woman  on  whom  the  assault  is  connnitted,  and  by 
the  proof  of  corroborating  circumstances. 

If  the  jury  believe,  from  the  evidence,  that  at  the  time  the 
offense  is  alleged  to  have -been  committed,  the  prosecuting  wit- 
ness made  no  outcry,  and  did  not  innnediately  complain  of  the 
offense  to  others,  but  concealed  it  for  a  considerable  length  of 
time  afterwards,  then  the  jury  should  take  this  circumstance 
into  consideration  with  all  the  (»ther  evidence,  in  detei'inining 
the  (juestion  of  the  guilt  or  iiinoctence  of  the  accused,  and 
whether  a  rape  was  in  fact  committed  or  not. 

Though  the  jury  may  believe,  from  the  evidence,  that  the 
prosecuting  witness  did  not  tell  her  {mother)  or  others  of  the 
alleged  outrage   upon   her   until,  etc.;  still,  if  the  juiw  believe, 


IN    CRIMINAL    CASES.  549 

from  the  evidence,  beyond  a  reasonable  doubt,  that  the  defend- 
ant was  guilty  of  the  crime  charged  in  the  indictment;  and,  if 
the  jury  further  believe,  from  the  evidence,  that  at  tlie  time  of 
the  alleged  outrage  the  defendant  threatened  to  take  her  life  if 
she  ever  told  of  what  had  occurred,  and  she  was' afraid  she  would 
lose  her  life,  or  suffer  some  great  bodily  harm,  if  she  should  tell 
of  the  injuries  complained  of,  then  these  facts  would  excuse  the 
prosecuting  witness  from  communicating  the  knowledge  of  such 
injury  to  others. 

Consent  Given. — If  the  jury  believe,  from  the  evidence,  that  the 
prosecuting  witness,  L.  X.,  was  a  female  above  the  age  of  {ten) 
years  at  the  time  of  the  alleged  offense,  then  she  was  capable  in 
law  of  giving  her  consent  to  any  carnal  knowledge  of  her  by  the 
defendant ;  and  before  you  can  find  the  accused  guilty,  you  must 
l)e  satisfied,  from  the  evidence,  beyond  a  reasonable  doubt,  that 
lie  had  carnal  knowledge  of  the  said  L.  X.  foj-cibly  and  against 
her  will. 

Prosecutrix  Bound  to  Resist. — If  the  jury  believe,  from  the  evi- 
dence, that  at  the  time  the  rape  is  alleged  to  have  been  com- 
mitted, the  prosecuting  witness  had  it  in  her  power  to  resist  the 
defendant,  and  prevent  the  offense  by  kicking,  striking  and  biting 
him,  or  by  any  other  mode  calculated  to  repel  his  attack,  and 
that  she  failed  to  make  all  the  resistance  then  in  her  power  to 
make,  then  this  is  a  circumstance  that  the  jury  should  take  into 
consideration  with  all  the  other  evidence  in  the  case,  and  as  tend- 
ing to  show  that  no  rape  was  committed. 

If  the  jury  believe,  from  the  evidence,  that  the  force  and  re- 
sist?ance  used  by  the  prqsecutrix,  and  relied  upon  by  the  prosecu- 
tion for  a  conviction,  at  the  time  of  the  commission  of  the  alleged 
rape,  were  so  feebly  exerted  by  her  as  to  have  invited  rather  than 
discouraged  the  advances  of  the  accused,  they  may  well  doubt 
whether  the  rape  was  committed,  and,  if  they  do  so  doubt,  they 
should  find  the  defendant  not  guilty.  People  vs.  Morrison,  1 
Parker  Crim.  R.,  625;  People  vs.  Ahhot,  19  Wend.,  192;  Hull 
vs.  State,  22  Wis.,  580;  Croghanvs>.  State,  22  Wis.,  444;  State 
vs.  Cross,  12  la.,  60. 


550  INSTKrCTIOXS 

Power  of  Resistance  not  Overcome  by  Force  or  Fear. — If  the  jury 
believe,  from  the  evidence,  that  the  prosecutrix,  at  the  time  of 
the  allei^a'd  offense,  was  a  strong,  robust  woman,  and  that  the 
defenthmt  made  no  threats  of  personal  violence,  and  in  no 
manner  deprived  her  of  her  strength,  then  the  jury  may  well 
doubt  whether  the  crime  of  rape  was  connnitted;  and  if  they  do 
so  doubt,  they  cannot  convict  the  defendant  of  that  crime. 

That  it  is  a  well  settled  principal  of  law  that  when  the  accuser 
and  the  accused  are  both  in  the  possession  of  health  and  strength, 
and  of  the  ordinai-y  amount  of  physical  and  mental  power,  and 
in  circumstances  to  fully  exercise  that  power,  the  perpetration 
of  the  crime  of  rape  is  of  diificult,  if  not  impossible  occurrence. 

Contact  of  Sexual  Organs  \eccssary. — The  court  further  instructs 
the  jurv,  that  in  a  prosecution  for  rape  upon  a  female  above  the 
age  of  \ten)  years,  where  the  people  rely  exclusively  upon  proof 
that  threats  and  intimidation  are  employed  to  gain  the  consent 
of  the  female  upon  whom  the  rape  is  chai-ged,  such  threats  and 
intimidation,  together  with  actual  contact  of  the  sexual  organs, 
must  be  proved,  beyond  a  reasonable  doubt,  before  the  accused 
can  be  convicted  of  rape. 

Character  of  the  Woman  may  he  Shown. — The  jury  are  instructed, 
that  in  prosecutions  of  this  kind  the  character  of  the  woman 
may  be  called  in  question,  and  if  the  jury  believe,  from  the  evi- 
dence, that  the  prosecuting  witness  is  a  woman  of  bad  fame  or 
evil  repute,  they  may  take  this  fact  into  consideration,  together 
with  all  the  other  evidence  in  the  case,  in  determining  the 
amount  of  credit  to  which  her  testimony  may  be  entitled. 

Character  of  Prosecutrix  no  Defense. —  All  persons  are  entitled  to 
equal  protection  before  the  law ;  aiul  it  matters  not  what  may 
have  been  the  previous  character  of  a  woman,  she  cannot  be  as- 
saulted with  impunity ;  and  where  the  law  does  not  discriminate, 
you  as  a  jury  cannot;  hence  an  assault  upon  any  woman  with 
the  intent  to  commit  a  rape  is  a  crime,  and  the  person  making 
the  assault  is  amenable  to  the  law. 

And  in  this  case,  if  you  believe,  from  tlie  evidence,  that  de- 
fendant made  an  assault  upon  A.  15.,  and  that  said  assault  was 


IN    CRIMINAL    CASES.  551 

committed  with  intent  to  commit  a  rape  as  charged  in  the  indict- 
ment, you  should  find  the  defendant  guilty.  Pefferling  vs.  The 
State,  50  Texas,  486. 

No  Oiitery  Made. — If  the  jury  believe,  from  the  evidence,  that 
at  the  time  of  the  alleged  rape  other  people  were  at  the  same 
time  in  the  same  house,  who  might  easily  have  heard  her  had  she 
made  any  outcry,  and  that  she  in  fact  made  no  outcry  at  the 
time  defendant  was  attempting  to  have  connection  with  her> 
these  facts  will  tend  to  raise  a  presumption  that  no  rape  was 
committed  upon  her  at  the  time. 

Tlie  court  instructs  the  jury,  that  if  they  believe,  from  the 
evidence,  that  the  prosecuting  witness  was  above  {teji)  years  of 
age  at  the  time  of  the  alleged  offense,  then  before  the  defendant 
can  be  lawfully  convicted  of  the  crime  of  rape,  the  jury  must 
believe,  beyond  a  reasonable  doubt,  that  the  defendant  had 
carnal  connection  with  the  said  witness,  forcibly  and  against  her 
will. 

Wliat  Constitutes  an  Assault  With  Intent,  Etc. — The  conrt  instructs 
the  jury,  that  to  constitute  the  crime  of  an  assault  with  an  intent 
to  commit  a  rape  upon  a  female  above  the  age  of  {ten)  years,  there 
must  be  an  assault  on  the  person  of  the  female,  with  the  intent, 
forcibly  and  against  her  will,  to  ravish  and  have  carnal  connec- 
tion with  her,  coupled  with  an  apparent  present  ability  to  per- 
petrate the  offense. 

That  before  a  person  can  be  convicted  of  an  assault,  with  the 
intent  to  commit  a  rape  upon  a  female  above  the  age  of  {ten) 
years,  such  assault,  such  intent,  and  such  apparent  present  ability 
must  all  appear,  from  the  evidence,  beyond  a  reasonable  doubt. 

Assault  With  Intent,  Etc. — The  court  instructs  the  jury,  that  in 
order  to  warrant  a  conviction  for  an  assault  with  an  intent  to 
commit  a  i-aj)e,  the  jury  must  believe,  from  tlic  evidence,  that  if 
the  defendant  took  hold  of  the  prosecuting  witness,  or  otherwise 
assaulted  her,  that  he  intended  at  the  time  to  have  connection 
with  her,  forcibly  and  against  her  will ;  it  is  not  enough  that  the 
defendant  desired  to  have  connection  with  her,  but  he  must  have 
intended  to  have  it  by  force,  against  her  will. 


552  INSTKUCTIONS 

Reasonable  Doulif. — If,  iroin  tlic;  evidence,  tlie  jury  entertain  a 
reasonable  (Ktuhr  that  the  defendant  did  assanlt  the  prosecutrix, 
in  manner  and  form  as  char<red  in  the  indictment,  with  the 
intent  tog-ratify  his  passions  on  her  person,  by  force,  and  against 
her  \\\\\,  then  they  must  ae(|uit  the  defendant. 

Charge  «>f  Rape  and  Assault  With  Intent,  Ete. — If  the  jury  l)elieve, 
from  the  evidence,  l)eyond  a  reasonaljle  d()u1)t,  that  the  defend- 
ant is  guilty,  in  manner  and  form  as  charged  in  either  count  of 
the  indictment,  then  the  jury  will  so  lind,  by  their  verdict, 
stating  upon  which  count  they  find  the  defendant  guilty. 


ROBBERY. 

Robbery  Deflned. — The  court  instructs  the  ]ury,  that  robbery  is 
the  felonious  and  violent  taking  of  money,  goods,  or  other 
valuable  thing  from  the  person  of  another,  by  force  or  in- 
timidation. 

Facts  Constituting  Robbery. — If  the  jury  believe,  from  the  evi- 
dence, beyond  a  reasonable  doubt,  that  scmuc  time  about  the  day 
of,  etc.,  A.  B.  was  at  the  saloon  of  E.  M.,  in  this  county,  and  that 
he  then  had  in  his  possession  any  of  the  treasury  notes  or  bank 
l>ills  described  in  the  indicjtment  in  this  case,  and  that  such  notes 
or  bills  were  genuine,  and  of  some  value;  and  further,  that  one 
C.  D.  requested  the  said  A.  V>.  to  loan  liim  some  money,  and 
that  thereupon  the  said  A.  B.  took  out  his  said  treasury  notes  or 
bank  bills  for  the  purpose  of  making  such  loan;  and  further, 
that  the  said  defendant  tlien  grabbed  the  said  money  and  forcibly 
took  the  same  from  the  person  of  the  said  A.  B.,  and  then  ran 
away  with  said  money,  with  the  intention  of  stealing  the  same, 
this  would  constitute  robbery  on  the  part  of  the  defendant,  and 
the  jury  sliould  find  him  guilty,  in  manncu"  and  form  as  charged 
in  the  indictment,      itoscoe's  Crim.  Evi.,  81)3. 

The  jury  are  instructed,  that  to  constitute  the  crime  of  robl)ery, 
it  is  not  necessary  that  any  force  be  used  to  obtain  possession  of 
the  property.  It  is  sufficient  if  such  possession  is  obtained  from 
the  person  of  the  owner,  against  his  will,  by  threats  or  menaces 
of  personal  violence  against  him. 


IN    CRIMINAL    CASES.  553 

Tliat  to  constitute  the  crime  of  robhery  it  is  not  necessary  that 
the  property  should  be  actually  taken  from  the  person  of  the 
owner;  if  it  is  in  his  personal  custody,  and  is  taken  in  his  pres- 
ence, without  his  consent,  by  force,  or  by  putting  him  in  fear,  it 
is  sufficient  to  maintain  an  indictment  for  robbery.  Roscoe's 
Crim.  Evi,,  895. 

Taking  Must  be  by  Force  or  Fear. — That  to  justify  a  verdict  of 
guilty  of  robbery,  in  manner  and  form  as  charged  in  the  indict- 
ment, it  must  appear,  from  the  evidence,  to  the  satisfaction  of 
the  jury,  beyond  a  reasonable  doubt,  that  some  one  or  more  of 
the  treasury  notes,  or  l)ank  bills,  described  in  the  indictment, 
were  taken  from  the  person  or  from  the  immediate  j)resence  and 
possession  of  the  said  A.  B.  by  the  defendant  by  force,  or  by 
putting  him  in  fear;  and  unless  this  has  been  proved,  beyond  a 
reasonable  doubt,  the  jury  should  acquit  the  defendant  from  the 
charge  of  robbery. 

Property  Must  be  Proved,  as  Charged. — In  order  to.  convict  the 
defendant  on  the  charge  of  robbery,  the  people  must  prove, 
beyond  a  reasonal)le  doubt,  that  the  bills  or  treasury  notes  men- 
tioned in  the  indictment,  or  some  of  them,  were  feloniously,  and 
against  the  will  of  the  said  A.  B.,  taken  from  his  person  or  from 
his  immediate  presence  and  possession,  in  manner  and  form  as 
charged  in  the  indictment;  and  unless  this  has  been  so  proved, 
the  jury  should  find  tlic  defendant  not  guilty  of  the  charge  of 
robbery. 

Verdict  May  be  for  Larceny. — If,  in  view  of  all  the  evidence  in 
this  case,  the  jury  entertain  any  reasonable  doubt  as  to  whether 
the  defendant  obtained  the  goods  in  question  from  the  posses- 
sion of  the  plaintiff  by  force  or  intimidation,  but  do  believe, 
from  the  evidence,  beyond  a  reasonable  doubt,  that  the  defend- 
ant feloniously  took  the  property  in  question  from  the  possession 
of  the  plaintiff  by  stealth  or  by  fraud,  with  intent  to  steal  the 
same,  in  manner  and  form  as  charged  in  the  indictment,  then 
the  jury  may  find  the  defendant  guilty  of  the  crime  of  larceny. 

Note.— The  other  instructions  on  a  charge  of  robbery  are,  in  general, 
the  same  as  those  iu  larcuuy. 


554  INSTRUCTIONS 


SELLING  LIQUOR  WITHOUT  A  LICENSE. 

What  Coiistitiitos  the  OJrciiso. — The  court  instructs  the  jury,  that 
in  order  to  lind  the  defendant  guilty,  it  is  only  necessary  that 
the  jury  believe,  from  the  evidence,  beyond  a  reasonable  doubt, 
that  the  defendant,  either  by  himself,  his  agent  or  servant, 
-within  {eighteen)  months  t)efore  the  day  of,  etc.,  at  and  within 
the  county  of  W.,  sold  or  gave  away  intoxicating  liquors  in  less 
quantities  than,  etc.,  the  said  defcnduiit  not  having  a  license  to 
sell  the  same.  It  is  not  necessary  to  pi-ove  that  the  sale  or  giving 
away  was  on  the  day  laid  in  the  indictment,  nor  that  the  defend- 
ant himself  actually  dealt  out  the  liquor. 

Burden  of  Proof  as  to  License. — If  the  jury  believe,  from  the 
evidence,  beyond  a  rcasonal)le  doubt,  that  the  defendant  by  him- 
self, agent  or  servant,  made  the  sales,  as  charged  in  the  indict- 
ment, then  it  is  not  necessary  for  the  people  to  show,  by  j)roof 
in  the  first  instance,  that  he  had  no  license  to  sell  intoxicating 
liquors.  That  is  a  matter  of  defense,  and  should  be  proved  by 
the  defendant  if  he  had  such  license. 

If  the  jury  believe,  from  the  evidence,  beyond  a  reasonable 
doubt,  that  the  defendant,  either  as  principal  or  as  clerk,  servant 
or  bar-tender,  sold  or  gave  away  intoxicating  liquor  in  less  quan- 
tity than,  etc.,  within  this  county,  and  within  {eighteen)  months 
before  the  finding  of  this  indictment,  without  having  first  ol)- 
tained  a  license  therefor,  as  charged  in  the  indictment,  then  the 
jury  should  find  the  defendant  guilty. 

If  the  jury  believe,  from  the  evidence,  beyond  a  reasonable 
doubt,  that  the  defendant,  either  by  himself  or  by  another  per- 
son, as  his  agent  or  servant,  sold  or  gave  away  intoxicating 
liquors  in  less  quantities  than,  etc.,  in  manner  and  form  as 
charged  in  the  indictment,  then  the  jury  should  find  the  defend- 
ant guilty  upon  as  many  of  the  counts  of  the  indictment  as  there 
are  of  such  sales  or  giving  away  of  licpior  so  proven. 

Sales  by  Servant  or  Employj'. — If  the  jury  believe,  from  the  evi- 
dence, beyond  a  reasonable  doubt,  that  the  defendant  was  keep- 


IN    CRIMINAL    CASES.  655 

ing  a  saloon,  at  the  time  in  qnestion,  at  S.,  in  this  comity,  and 
that  the  witnesses  who  have  testified  in  this  case,  or  any  of  them, 
obtained  intoxicating  liquors  at  such  saloon  in  less  quantities 
than,  etc.,  within  {eighteen)  months  before  the  finding  of  this 
indictment,  then  the  defendant  is  liable,  whether  such  liquor 
was  furnished  by  himself  or  by  his  employe  or  bar-tendei-;  pro- 
vided, the  jury  further  believe,  from  the  evidence,  that  the 
defendant,  at  the  time,  had  no  license  to  sell  such  liquors. 

If  the  jury  believe,  from  the  evidence,  beyond  a  reasonable 
doubt,  that  intoxicating  liquors  were  obtained  at  the  saloon,  etc., 
as  claimed  by  the  prosecution,  and  that  the  saloon  where  such 
liquors  were  obtained  belonged  to  the  defendant,  and  was  at  the 
time  in  his  possession,  or  under  his  control,  then,  if  there  is  no 
evidence  to  the  contrary,  the  presumption  of  law  would  be  that 
the  liquors  so  obtained  were  sold  by  the  defendant,  either  by 
himself,  his  agent  or  servant. 

The  jury  are  instructed,  that  in  this  case  it  is  not  indispensa- 
ble for  the  people  to  show  that  the  defendant  himself  actually 
sold  or  furnished  the  liquors  in  question  to  {the  witnesses).  It 
is  sufficient,  if  the  jury  believe,  from  the  evidence,  beyond  a 
reasonable  doubt,  that  the  liquors  were  sold  as  charged  in  the 
indictment  by  the  defendant,  or  his  agents  or  servants,  at  any 
time  within  {eighteen)  months  before  the  finding  of  the  indict- 
ment, and  that  at  the  time  the  defendant  had  no  license  to  sell 
intoxicating  liquors. 

Wlien  not  Liable  for  Act  of  Servant. — If  a  clerk  or  bar-keeper  in 
a  saloon  sell  intoxicating  liquor,  without  the  knowledge  and 
against  the  instructions  of  his  employer,  the  latter  is  not  crimi- 
nally responsible  for  the  act.  Lathrop  vs.  8tate  51  Ind.,  192; 
Com.  vs.  Putnam,  4  Gray,  16. 

Though  the  jury  may  believe,  from  the  evidence,  that  the  said 
A.  B.  obtained  intoxicating  liquors  at  defendant's  place  of  busi- 
ness from  one  W.,  who  was  then  acting  as  the  agent  or  servant 
of  defendant,  as  alleged;  still,  if  the  jury  further  believe,  from 
the  evidence,  that  before  that  time  the  defendant  had  instructed 
the  said  agent  or  servant,  in  good  faith,  not  to  sell  or  give  away 
intoxicating  liquors,  and  with  a  hojia  fide  intent  to  have  such 
instructions  obeyed ;  and,  further,  that  the  said  W.,  in  selling  or 


556  INSTRUCTION 

givinu^  uway  said  liquors,  was  actiiii;'  in  violation  of  said  iiislnic- 
tioiis  and  ai^-ainst  the  wishes  of  the  defendant,  then  the  jury 
should  tind  the  del'endant  not  <;-uilty  of  the  sale  so  made. 

Cliarge  Must  be  ft-oved  as  Alleged. — The  jui'V  are  instructed,  that 
the  erinie  eharged  against  tlu;  defendant  in  tlu^  indictment  in 
this  case,  is  that  of  having  sold  intoxicating  li(|uors  witlK)ut  a 
license  to  sell  the  same;  and  nnless  the  prosecution  has  proved 
some  one  or  more  of  the  sales  charged  in  the  indictment,  heyond 
a  reasonable  doubt,  the  jury  shoidd  lind  the  defendant  not 
guilty. 

Unless  the  jnry  believe,  from  the  evidence,  beyond  a  reason- 
al)le  doubt,  that  the  defendant  made  some  one  or  more  of  the 
sales  charged  against  him,  either  as  principal,  agent,  clerk  or 
servant,  within  {eighteen)  months  before  the  finding  of  the  in- 
dictment in  this  case,  then  the  jury  nmst  find  the  defendant  not 
guilty. 

Sales  by  Alleged  Agent— Agency  Must  be  Prored. — Although  the  jury 
may  believe,  from  the  evidence,  that  one  A.  B.,  at  the  time  and 
place  alleged,  did  unlawfully  sell  intoxicating  liquors;  still,  un- 
less the  prosecution  have  proved  l)y  evidence  so  as  to  satisfy  the 
jury,  beyond  any  reasonable  doul)t,  that  the  said  A.  B.  when  he 
made  such  sales  was  acting  as  the  agent,  clerk,  bar-tender  or 
servant  of  the  defendant,  then,  as  to  such  sales  made  by  the  said 
A.  B.,  the  jui-y  should  lind  the  defendant  not  guilty. 

Single  Transaction  One  Offense. — The  jury  are  instructed,  that 
where  two  or  more  glasses  of  intoxicating  li(pior  are  called  for 
])y  one  person,  and  are  sold  at  one  time  as  part  of  the  same 
transaction,  and  all  paid  for  by  the  same  pei'son,  such  transac- 
tion constitutes  but  one  selling  within  the  meaning  of  the  law 
undci-  which  this  prosecution  is  brought. 

Sale  to  Minors If  the  jury  l)elieve,  fi'om  the  evidence,  beyond 

a  reasonaide  doubt,  that  the  defendant  by  himself,  agent  or  serv- 
ant, within  {ei(/htecn)  months  before  the  finding  of  the  indict- 
ment in  this  case,  within  this  county,  sold  or  gave  away  any  in- 
toxicating liquor  to  A.  B.,  and  that  at  that  time  the  said  A.  B. 


IN    CRIMINAL    CASES.  557 

was  under  the  age  of  twenty-one  years;  and  further,  that  such 
sale  was  made  without  a  written  order  of  the  parents,  guardian 
or  family  physician  of  the  said  A.  B.,  then  the  jury  should  find 
the  defendant  guilty  under  the count  of  the  indictment. 

Burden  of  Proof  as  to  Written  Order. — The  jury  are  instructed, 
that  all  that  is  necessary  for  the  prosecution  to  prove,  in  order 
to  warrant  a  conviction  in  this  case,  is  to  satisfy  the  minds  of  the 
jury  by  the  evidence,  and  beyond  any  reasonable  doubt,  that  the 
defendant  by  himself,  agent  or  servant,  at  and  within  this  county, 
within  {eighteen)  months  before  the  finding  of  this  indictment, 
sold  or  gave  intoxicating  liquors  to  either  of  the  parties,  as 
charged  in  the  indictment,  and  that,  at  that  time,  the  person  to 
whom  the  sale  was  made  or  the  liquor  given,  was  a  minor  under 
the  age  of  twenty-one  years ;  provided,  the  defendant  has  failed 
to  show  that  he  had  a  written  order,  etc. 

The  fact  of  the  defendant  having  a  written  order  from  parents, 
guardian  or  family  physicians  authorizing  a  sale  to  a  minor,  is 
a  matter  of  defense,  and  if  the  people  have  proved  to  the  jury 
by  the  evidence,  beyond  a  reasonable  doubt,  the  sale  or  giving  of 
intoxicating  liquors  to  a  minor,  as  charged  in  the  indictment, 
then  the  jury  should  find  defendant  guilty;  unless  the  jury  be- 
lieve, from  the  evidence,  that  at  the  time  of  such  sale  he  had 
such  written  order. 

Knowledge  of  Minority  Immaterijil. — The  jury  are  instructed,  that 
if  they  believe,  from  the  evidence,  that  the  defendant  by  him- 
self, his  agent  or  servant,  sold  or  gave  intoxicating  liquor  to  the 
said  A.  B.,  and  that  the  said  A.  B.  was  at  that  time  a  minor, 
under  the  age  of  twenty-one  years,  then  it  is  wholly  immaterial 
whether  the  defendant  knew,  or  did  not  know,  that  the  said  A. 
B.  was  a  minor,  nor  whether  the  said  defendant  was  himself  de- 
ceived in  regard  to  the  age  of  the  said  minor.  A  person  engaged 
in  the  business  of  selling  intoxicating  liquors,  sells  to  a  minor  at 
his  peril,  and  is  equally  guilty  whether  he  knows,  or  does  not 
know,  the  age  of  the  person  to  whom  he  is  selling.  State  vs. 
Harffield,  24  Wis.,  60 ;  Com.  vs.  Emmons,  98  Mass.,  6 ;  3  Greenl. 
Ev.,  §  21. 


558  iNSTRUcnoNS 

Selling:  to  a  Person  in  the  Habit,  Etc. — The  court  instructs  tlie  jurv^ 
that  by  the  hiws  of  this  state  it  is  unlawful  for  any  person,  by 
liiinself,  or  by  his  a^-ent  or  servant,  to  sell  or  give  intoxicating 
liquor  to  a  person  wlien  he  is  intoxicated,  or  to  a  person  who  is 
in  the  habit  of  getting  intoxicated. 

The  jury  are  instructed,  that  if  they  l)elieve,  from  the  evidence, 
beyond  a  reasonable  doubt,  that  the  defendant  either  in  person 
or  by  his  agent  or  servant,  within  {eighteen  months)  before  the 
finding  of  the  indictment  in  this  case,  sold  or  gave  to  A.  B. 
intoxicating  liquor;  and  further,  that  the  said  A.  B.,  at  the  time 
of  such  selling  or  giving,  was  a  person  in  the  habit  of  getting 
intoxicated,  then  the  jury  should  tind  the  defendant  guilty. 

Meaning  of  the  Words  "in  the  Habit  of  dietting  Intoxicated." — The 

court  further  instructs  tlie  jury,  tliat  in  giving  a  construction  to 
the  statute  under  which  this  indictment  Avas  found,  the  jury 
should  give  to  the  words  "  in  the  habit  of  getting  intoxicated," 
their  common,  ordinary  signification  and  meaning;  the  words 
mean  in  the  law  just  what  they  mean  in  common,  ordinary 
convei'sation. 

The  jury  are  instructed,  that  if  they  believe,  from  the  evi- 
dence, beyond  a  reasonable  doubt,  that  the  defendant  sold  or 
gave  to  the  said  A.  B.,  intoxicating  liquor,  as  charged  in  the 
indictment,  and  that  the  said  A.  B.  was,  at  the  time,  in  the  habit 
of  getting  intoxicated,  then  it  is  wholly  immaterial  whether  the 
defendant  knew  or  did  not  know  that  the  said  A.  B.  was  a  person 
in  the  hal)it  of  getting  intoxicated.  A  person  engaged  in  the 
business  of  selling  intoxicating  di-inks,  selling  to  a  person  who  is 
in  the  habit  of  getting  intoxicated,  sells  at  his  peril,  and  he  is 
equally  guilty  M'hether  he  does  or  does  not  know  the  habits  of 
the  person  to  whom  he  is  selling. 

Habit  3Iiist  Exist  at  tlie  Time,  Etc. — The  jury  are  instructed,  that 
although  they  may  believe,  from  the  evidence,  beyond  a  reason- 
able doubt,  that  the  said  A.  B.  was,  at  one  time,  addicted  to  the 
use  of  intoxicatini;'  liquor  so  as  to  be  in  tlie  habit  of  jrettinir  in- 
toxicated;  still,  if  the  jm-y  furtlu-r  lind,  from  the  evidence,  that 
])eforc  the  time  of  the  alleged  sale  in  questic^n  in  this  suit  the 
said   A.  B.   had   I'eformed,  or  partially  refoi'ined,   his  habits  in 


""^  '       IN    CRIMINAL    CASES.  559 

that  respect,  and  was  not,  at  the  time  in  question,  in  the  habit 
of  getting  intoxicated,  then  the  jury  shoukl  find  the  defendant 
not  guilty. 

The  court  instructs  the  jury,  that  unless  the  prosecution  have 
proved,  by  the  evidence,  to  the  satisfaction  of  the  jury,  beyond 
a  reasonable  doubt,  that  the  said  defendant  did,  by  himself, 
agent  or  servant,  sell  or  give  to  the  said  A.  B.  intoxicating  liq- 
uors, and  also  that  the  said  A.  B.  was,  at  the  time  of  such  sale 
or  giving  away,  a  person  then  in  the  habit  of  getting  intoxicated, 
the  jury  should  find  the  defendant  not  guilty. 

In  the  Habit  of  Drinking,  Not  Enough. — The  jury  are  instructed, 
that  it  is  not  enough  to  warrant  a  conviction  in  this  case;  that  it 
shall  appear,  from  the  evidence,  beyond  a  reasonable  doubt,  that 
the  said  A.  B.  was  a  person  in  the  ha1)it  of  drinking  intoxicat- 
ing liquors  at  the  time  in  question ;  it  must  appear  not  only  that 
he  was  in  the  habit  of  drinking  intoxicating  liquors,  but  that  he 
was,  at  the  time,  drinking  them  to  such  an  excess  as  to  be  in  the 
habit  of  getting  intoxicated. 


ITsTDEX. 

Account  Stated.  page. 

Need  not  be  in  Express  Terms 41) 

Settlement  Presumed  to  Include  all  Items 4!) 

Can  only  be  Opened  for  Fraud  or  Mistake 41) 

If  Kendered  and  not  Objected  to,  is  Admitted 50,  140 

May  be  Opened  for  Fraud  or  Mistake 51 

Receipt  may  be  Contradicted 51 

Receipt  Prima  Facie  correct  51 

Acceptance  op  Wokk— «See  Work  and  Labor. 

Accidents. 

Carrier  not  an  Insurer  ajrainst 62 

Inevitable  Accident,  -wiiat 67 

Injuries  from 79 

Injuries  from  Accident  and  Negligence 245,  26S 

Accomplice. 

Testimony  of 4S0 

Act  of  God. 

What  is  Meant  by 6G-8t) 

What  is  not 67 

Common  Carrier  not  Liable  for  Loss  occasioned  by,  etc 66 

Carrier  must  use  reasonable  care  to  avoid  Injury  by 07 

Adverse  Possession — See  Possession. 

Admissions. 

Verbal,  How  Weighed 40 

All  to  be  Considered  together 41,  477 

Jury  may  Believe  Part  and  Reject  Part 41 

In  Affidavit  for  Continuance 43 

When  Party  not  Estopped  by 42 

Affidavit. 

For  Continuance  43 

Agency — See  Principal  and  Agent. 

Aiders,  Abettors,  Etc. 

In  Trespass 380,  398 

In  Criminal  Cases. 

Accessory  Defined 483 

Aiding,  Advising,  Etc.,  May  be  by  Words  or  Acts 484 

Need  not  be  by  Express  Agreement 484 

Aiding  or  Abetting  Assault 484 

Aiding  or  Abetting  Murder 485 

Aiding  or  Abetting  Burglary 48G 


11  INDEX. 

In  Criminal  Casefi,  {Conliniied). 

Advising  and  EneouraKinfr,  not  being  Present 4S6 

Present,  not  Aiding  or  Aln;tting 48(5 

One  or  more  may  bo  found  Guilty 4SG 

Aliui,  Defense  ov — Sec  Burnhinj. 

Alteking  Written  Instruments. 

Material  Alteration  Renders  Void 52 

Alteration  Adopted  by  Maker 52 

If  not  Material  does  not  llender  Void 52 

Alterat  ion  Presumed  to  be  Made  after  Execution 53 

Ko  Presumption  of  Law  as  to  when  made 53 

Animals. 

Trespass  by  Domestic  Animals. — See  Trespass. 

Application  of  Payments. 

Debtor  may  Direct,  if  he  does  not,  Creditor  may 54 

"When  neither  Debtor  nor  Creditor  makes  an  Application,  then 

the  Law  will  make  it 55 

Creditor  has  no  Eight  to  Disregard  Directions  of  the  Debtor 54 

If  Debtor  makes  Application,  Creditor  can  not  Change 54 

The  Law  will  apply  on  the  Debt  first  due 55 

ASBAVLT. 

Assault  and  Assault  and  Battery  Defined 379 

"With  Intent  to  Commit  Rape 551 

Willi  Intent  to  Commit  Murder. 

Assault  Defined 4H7 

Must  be  such  as  would  be  Murder  if  Death  had  ensued 4.-'7 

Doubt  as  to  Intent  4H7 

Presume  to  Intend  Natural  Consequences,  etc 487 

Reckless  or  Wanton  Injury 4SH 

Facts  showing  Deliberation 488 

Intent  may  be  Proved  by  Circumstances 488 

Intent  must  Appear 488 

Intent  to  Kill  must  e.xist 4^!> 

Blow  in  Heat  of  Passion  4;K) 

Incapable  of  forming  Intent  from  Drunkenness 4!)0 

Must  b(^  Proved  beyond  Reasonable  Doubt 4!i! 

Every  Matci-ial  Allegation  must  be  Proved 4!n 

Verdict  may  be  for  Assault  with  Deadly  Weapon 491 

With  Deadly  Wea})on,  Etc. 

Assault  with  a  Knife  Charged 492 

Proof  of  Instrument  of  the  same  kind 492 

What  Constitutes  the  Crime! 492 

What  Necessary  to  Prove 493 

No  Crime  without  Intent 4!»3 

Presumption  of  Intent  may  be  Rebutted 494 

Iimocence  Presumed 494 

Deadly  Weapon  Defined 494 

Assignee  of  Commercial  Paper.  — iJtc  XcjoUuble  Instruments. 


INDEX,  111 

Attachment — plea  in  abatement  to  affidavit. 

About  to  Depart  from  the  State ,...,. 55 

What  is  not  a  Departing  from  the  State 56 

About  to  Depart  from  the  State — how  proved 56 

Intent  to  Depart— how  shown 57 

On  the  Ground  of  Fraud 57 

The  Fraud  must  be  Proven  by  a  Preponderence  of  the  Evidence  57 

Good  Faith  Presumed = 57 

Attorney. 

Statements  of,  to  Jury 44 

As  Witness 45 

Statements  of  Prosecuting  Attorney 481 

Baggage. — See  Common  Carrier. 

Bills  of  Lading. 

Implies  what  Contract 73 

Not  Conclusive 73 

Building. 

W^hen  Personal  Property 356 

Burden  of  Proof. 

Is  on  the  Party  holding  the  Affirmative 38 

Breach  of  Contract '^^ 

In  Divorce   114 

In  Ejectment !-•> 

Statute  of  Limitation 126 

In  Forcible,  Entry,  etc 145 

Under  Dram  Shop  Act 184 

In  Malicious  Prosecution 202,  205 

In  Malpractice 213 

Failure  or  Want  of  Consideration 318 

Contesting  Will 434 

Burglary. 

What  Constitutes  495 

Prima  Facie  case  of  495 

Intent  Charged  must  be  proved 49.") 

What  Constitutes  a  Breaking 496 

What  Constitutes  an  Entry 496 

May  be  found  Guilty  of  Larceny 497 

Proof  of  Identity. 

Must  be  Proved  beyond  Reasonable  Doubt 497 

Doubt  as  to  Defendant  or  some  one  else 497-498,  517 

By  Comparison  of  Tracks 498 

Alibi. 

Legitimate  Defense 499 

Need  not  be  Proved  beyond  a  Eeasonable  Doubt 499 

Proof  of  Good  Character. 

Good  Character  Presumed  500 

Former  Good  Character 500 

Omission  to  Prove 501 

Effect  of 501 


IV  I N  I)  K  X . 

Proof  of  Good  Character  {Continued). 

Always  Proper 502 

Guilt  notwithstandiu}? 502 

Care  and  Diligence. 

Onliiiary  Care  and  Diligence,  what 71 

Reasonable  Care  and  Caution,  what 245 

Must  be  Proportionate  to  Known  Danj^i^r 245,  285 

Reasonable  Care  Required 254 

PhiinUrt"  must  Exereist;  Reasonable  Care 255 

{See  Negligence  by  Railroad  Companiea.) 

Character. 

Good,  Presumed 500 

Proof  of  Good — See  Burglary. 

Chattel,  Mortgage. — See  Fraud  against  Creditors. 

Children. 

Father  Entitled  to  Earnings  of  Minor 220,  293 

Contributory  Negligence  of  29 1-293 

Goods  furnished  Minor  Child 339 

Father  may  Emancipate  Minor  Child 463 

Minor  can  Disaffirm  Contract,  when 4(i3 

Circumstantial  Evidence. — See  Evidence. 

Commission  Men. — See  Factors  or  Commission  Men. 

Common  Carriers — Of  Passengers  and  Baggage. 

Common  Carrier  Defined   58 

Injury  prima  facie  Evidence  of  Negligence 58 

Degree  of  Care  required  of  the  Carrier 59-61 

Degree  of  Care  required  of  the  Passenger <il 

Passenger  takes  no  Risks  but  those  necessarily  incident  to  the 

Mode  of  Conveyance 60 

Passenger  takes  all  Risks  necessarily  incident  to  the  Mode  of 

Conveyance C:; 

Jumping  from  the  Cars  not  Negligenc(?,  when 61 

Jumping  from  the  (!ars  Neglig(mce,  when 6i 

Not  an  Insurer  against  .\ccidont  (i2 

Liability  for  Baggag(> 6;j 

If  a  Trunk  contains  Arlieles  of  special  value  Carrier,  should   !>(> 

notified 6:! 

Not  bound  to  Inquire  as  to  the  Contents  of  a  Trunk (i4- 

Placing  Valuabl<!s  in  the  hands  of,  as  Baggage  is  a  Fraud 6  4 

Liability  for  Baggage  terminates  when (it 

Of  Goods. 

Who  is  a  Common  Cairier 65 

Liability  of  Comm<m  Carrier 65 

Law  of  the  State  where  the  Goods  are  delivered,  governs 65 

Liable  for  all  Loss  exr-ept  by  Act  of  God,  etc 66 

What  is  meant  b"  Act  of  God 66 

What  is  not  an  Act  of  God ''.T 

Inevitable  Accident,  what 67 


INDEX.  V 

Of  Goods  {Continued). 

Must  use  Reasonable  Care  to  Avoid  Injury  by  Act  of  God 67 

"Written  Receipt  not  required   t)7 

Wlien  liability  of  Carrier  commences t>8 

Liability  Continues  how  long         68 

If  Goods  are  not  Delivered  to  Consignee  they  must  be  Stored.  . .  68 
Railroad  Companies  are  not  Bound  to  Deliver  to  Consignee  Per- 
sonally    69 

Duty  and  Liability  of  Express  Companies 69-70 

Care  Required  of  a  Warehouseman 70 

What  is  Ordinary  Diligence  and  Care 71 

Must  Carry  within  a  Reasonable  Time , 71 

First  Carrier  Liable  for  Loss 71 

Receipt  prima  facie  Evidence  of  Goods  in  good  order 72 

What  Contract  Bill  of  Lading  Implies 1'-'> 

Bill  of  Lading  not  Conclusive  of  Condition 73 

Carrier  does  not  Insure  Condition  of 7;5 

Can  only  restrict  Common  Law  Liabilities  by  contract 74 

Legal  duty  of,  Imposed  by  Law 74 

Exemption  Clause  in  Receipt  not  Binding 74 

Exemption  Clause  Binding  if  agreed  to    74 

Shipper  will  be  Presumed  to  Agree  to  Exemption  Clause,  when  .  75 

Burden  on  Carrier  to  Show  Loss  within  Exemption 75 

Liability  not  Limited  by  Notice 76 

Receipt  Evidence  of  Exemption 76 

Must  Ex(!rcise  Reasonable  Care  to  prevent  Loss  within  Exemption  7(> 

Shipper  Bound  by  Receipt,  when 77 

Shipper  not  Bound  by  Notice  printed  on  Receipt 77 

Cannot  Restrict  Liability  arising  from  Negligence 77 

Of  Live  Slock. 

Duties  and  Liabilities  of 78 

What  Care  Required  of 78 

Injuries  Without  Carriers  Fault 79 

Care  Required  of  Carriers  of  Hogs 79 

Degree  of  Care  Required  to  Avoid  Delay 80 

Suit  by  Carrier  for  Freight  and  Charges 80 

Carrier's  Lien 81 

Composition  Ageeement. 

Party  not  Bound  by  Offer  to  Compromise 42,  94,  466 

Condonation — See  Divorce. 

Confessions  in  Ckiminal  Cases — See  Evidence. 

Consideration — See  Contract. 

Conspiracy. 

Defined 503 

Usually  Proved  by  Circumstances 503 

Proof  of  Formal  Agreement  not  Necessary 503 

Who  are  Deemed  Guilty 504 

No  Overt  Act  Necessary 504 

Contra,  by  Statute 504 

Common  Design  or  Purpose  Must  be  Proved 505 


VI  INDEX. 

CONTINTAXCE. 

Allidavit  for . .  43 

Contracts. 

Capacity  to  Contract 81 

Drunkenness  as  a  Ground  of  Avoidance 82 

Fraud  and  Circumvention  in  Procuring  Execution  of 83,  150 

Signature  Procured  by  Fraud 83 

"What  Constitutes ^3 

Tlie  Minds  of  the  Parties  Must  Meet 83 

Need  not  be  any  Formal  Acceptance S-l 

Of  Sale,  What  is 84 

Consideration  Necessary 84 

What  is  Consideration 84 

One  Promise  is  a  Good  Consideration  for  Another  Promise 84 

New  Promise  to  Perform  Legal  Obligation 85 

"When  Promise  to  Kcceive  Part  Payment  is  Without  Consideration  85 

Partial  Payment  by  Stranger,  etc 85 

Construction  of 86 

Performed  as  Modified  by  Parol  86,  406 

Right  to  Rescind  for  Fraud 86 

Right  to  Rescind  for  Mistake  of  Fact 87 

Notice  of  Intention  to  Rescind  Must  be  Given 87 

Rescinding  by  Mutual  Consent 87 

Rescinding  for  Non-performance 88 

When  may  Recover  for  Partial  Performance .: 89 

Hardship  will  not  Excuse  Non-performance 89 

Act  of  God  will  Excuse,  wliat  is 89 

Burden  of  Proving  Breach  of 8'.» 

Made  on  Sunday  are  Valid 90 

Made  on  Sunday  not  Void  but  Voidable 90 

Subscription  Paper  * 92-93 

For  Labor,  Presumed  to  Continue,  When 404 

Marriage. 

How  Proved 90 

No  Actual  Promise  Need  be  Shown 91 

When  Offer  to  Perform  is  not  Necessary 91 

Unchastity  no  Defense,  Wlicn 91 

Desirability  of  Party  Should  Not  be  Considered  by  Jury 91 

Breach  of  Promise,  how  Proved 92 

Composition  Agreement. 

Good  Faith  Required 94 

Secret  Agreement  Renders  Void  as  to  Others 94 

Sale  of  Personai.  Property. 

Future  Delivery 9.") 

No  Demand  for  Delivery  Need  be  Made,  When 90 

Only  Act  of  God,  etc.,  will  Excuse  Non-performance  90 

Plaintiff  Must  Show  Readiness  to  Perform 96-97 

Measure  of  Damages -'7 

Tender  of  Performance '•^'' 

Payment  and  Delivery  Concurrent  Acts 97 


<l 


INDEX.  Vll 


Sale  of  Peksonal  Peoperty  (Continued) . 

Option  Contract  Detined 

Option  Contract  is  Prohibited  by  Law. 


98 

98 

Custom  and  Usage  Enter  Into  and  Form  a  Part  of,  When 98 

CORPOBATIONS. 

Suit  against,  How  to  be  Tried 40 

Witnesses  for,  How  Regarded 40 

COUST. 

Remarks  by  in  Presence  of  Jury H 

Ckedibility  of  Witness — See  Witness. 

Custom  and  Usage. 

Enter  Into  and  Form  Part  of  a  Contract 98 

To  be  Binding  Must  be  Generally  Known  and  Established 98 

Factors  are  Presumed  to  Conform  to * 99,  134,  137 

(See  Factors  and  Commission  Men.) 

Damages — See  Measure  of  Damages. 

Deadly  Weapon. 

Defined 494 

Blow  with  a 508,  509 

Debt  on  Bond. 

Presumption  from  Proof  of  Signature 101 

Sureties  Bound  by  Action  of  their  Principal 102,  104 

Extent  of  Agents'  Authority 104 

What  is  Proved  by  the  Record  in  Replevin  suit 104 

(See  Measure  of  Damages.) 

Dedication— See  Highways. 

Deed. 

Takes  effect  from  time  of  delivery 115 

What  constitutes  Delivery 115 

No  particular  Form  or  Ceremony  necessary 115 

Need  not  be  delivered  to  the  Grantee  personally 116 

Must  be  Both  Delivered  and  Acceptetl 116 

Not  Necessary  to  transfer  Adverse  Possession 124 

Title  to  Real  Estate  can  only  be  Conveyed  by 117 

Priority  of 118 

By  way  of  Mortgage 119 

Delivery — See  Deed. 

Of  Official  Bond IIG 

Demand  and  Refusal. 

Demand  Need  not  be  Made,  when 96 

What  Constitutes 100 

No  Particular  form  of  Words  Necessary 100 

Must  be  made  by  Party  Authorized, 100 

Demand  by  Agent 100 

Ground  of  Refusal  Must  be  Specified  100 

What  Essential  to  a  Demand 351 

Evidence  of  Conversion 407 

When  Demand  not  Necessary  in  Trover 407 


Vin  INDEX. 

Departing  From  the  State— .See  Attachment. 
Desertion — See  Divorce. 
DiSTRAixixG  Stock— See  Replevin. 

DlVORtE. 

Residence  and  Desertion 105 

Domicile  of  Husband  is  that  of  the  Wife lO.i 

Husband  has  Right  to  Select  the  Residence 105 

Abusive  Lanf^uage  Provocation  for  Wife  leaving 105 

"When  Desertion  the  only  Issue 106 

Separation  by  Mutual  Consent  106 

Absence  Alone  not  Proof  of  Desertion 106 

Desire  for  Reconciliation  after  Separation  by  Mutual  Consent.  .  107 

Refusal  to  Become  Reconciled  Desertion,  When 107 

When  Refusal  to  Become  Reconciled  not  Desertion 107 

Adultery  as  a  Ground  for  lO'J 

Adultery  Must  be  Proved 109 

Adultery  Must  be  Prior  to  Commencement  of  Suit  for 109 

Extreme  and  Repeated  Cruelty  as  a  Ground  for 109 

Drunkenness  and  Threats 110 

Personal  Violence  Must  be  Shown 110 

Acts  of  Cruelty  Must  be  Repeated 110 

Acts  of  Cruelty  Must  be  Recent ' Ill 

Reason  to  Fear  Cruelty  Must  Exist  When  Bill  is  Filed 111-112 

Acts  of  Cruelty  Provoked  by  Complainant 112 

Cruelly  Provoked  by  Refusal  to  Cohabit 1 13 

Hysteria 113 

Burden  of  Proof 114 

Condonation 114 

Desertion. 

Grounds  of,  by  Wife ]i)7 

Adultery  Excuse  for li)7 

Cruelty  as  an  Excuse  for . .  108 

Acts  of  Cruelty  must  be  Apprehended  at  the  Time 109 

Dori5T. 

Reasonable,  Defined 481-482 

As  to  Which  of  Two  or  More  Persons  is  Guilty 517 

Drunkenness. 

As  Affecting  Capacity  to  Contract 82 

As  a  Ground  of  Avoidance  of  a  Contract 82 

Shown  in  Mitigation  in  Slander 239 

No  Justification  in  Trespass 384 

As  Affecting  Testamentary  Capacity 440 

Insanity  Produced  by 440 

As  Affecting  Intent  in  Criminal  Cases 490,  514 

No  Excuse  for  Crime 525-526 

Duress — .See  Xcgotiuble  In-flntmenta. 

Ejectment. 

Only  Legal  Titles  Involved IIG 


INDEX.  iX 

Ejectment  {Continued). 

Ono  in  Possession  of  Keal  Estate  presumed  to  be  Owner 117 

Paper  Titlt^  shown  by  Plaintiff 117 

Eight  to  Possession  must  be  Shown 117 

Title  can  only  be  Conveyed  by  Deed 117 

Title  Deduced  from  a  Common  Source 1 1 « 

Both  Parties  Claim  under  same  Person IIM 

Priority  of  Deeds 118 

Plaintiff's  Deed  by  way  of  Mortgage 119 

Possession  prima  facie  Evidence  of  Title 120 

Defendant  need  not  show  by  what  Eiglit  he  holds  Possession 

until  Plaintiff  has  shown  Title 120 

First  Possessor  has  the  Better  Title  120 

Deed  from  Party  in  Possession  Claiming  Title 121 

Estoppel. 

General  Kule 130 

Intention  Not  Essential 131 

Knowingly  Permitting  Another  to  Deal  with  Property  as  Owner.  131 

Pi,epresentations  by  the  Acts  of  a  Paity 132 

Kepresentation  must  be  Acted  on  132 

Must  be  a  Fraudulent  Purpose  or  Result 133 

Injury  Must  be  Shown 133 

Holding  Oneself  out  as  Partner 331 

Permitting  One  to  Hold  Himself  out  as  Agent 343 

Evidence. 

Preponderance  of,  how  Determined 3G 

Negative,  What  is  Not 38 

Preponderance  of,  Sufficient  in  Suit  for   Sale  of   Intoxicating 

Liquors 184^ 

Weight  of,  a  Question  of  Fact  for  the  Jury 2',) 

Weight  of— Degree  of  Proof  in  Criminal  Cases. 

Presumption  in  Favor  of  Innocence 471 

Every  Allegation  Must  be  Proved  Beyond  a  Reasonable  Doubt. .  471 

Prisoner  Entitled  to  Every  Reasonable  Hypothesis 471 

Probability  of  Guilt  not  Sufficient 472 

Preponderance  of,  not  Sufficient 472 

Guilt  Must  be  Proved  Beyond  a  Reasonable  Doubt 473 

Jury  Should  Consider  all  the  Evidence 473 

Better  that  many  Guilty  Persons  Escape,  etc 473 

Jury  Should  Endeavor  to  Reconcile 473 

Want  of  Motive 474 

Accused  Need  Not  Testify 474 

Failure  to  Testify  no  Presumption  Against,  etc 474 

Testimony  of  Accused  to  be  Weighed  by  the  Jury 474-475 

Circumstanliu  I. 

Competent,  etc 475 

Deflned 475 

Must  all  be  Consistent  wnth  Guilt,  etc , 475 

Must  all  be  Inconsistent  with  Innocence 475 

Circumstances  Pointing  to  Some  Other  Person 51 G 


X  IXDEX. 

Circwnsla7iiial  (Conlinued) . 

Deforce  uf  Certainty  Roquiroil  from 47G 

Ono  Fact  Inconsistent  witli  Guilt 477 

Direct  Evidence  Not  Required 477 

Must  Exclude  Every  Reasonable  Hypothesis  of  Innocence 516 

AdmLssion-s  and  Confensio^is  in  Criminal  Caaes. 

Must  all  be  Taken  Together 4  77 

Must  bo  Treated  Like  Other  Evidence 478 

Out  of  Court  be  Received  with  Caution 478 

Effect  when  Corroborated 478-479 

"When  Sufficient  to  Convict 471) 

T(>stiniony  of  Accomplice  to  be  Received  with  Caution 480 

Fabricated  Testimony  Explained 480 

Contradictory  and  Inconsist(>nt  Statements. . .    480 

One  Witness  Sufficient,  when 481 

Crime  Charged  Must  be  Proved  481 

Statement  of  Prosecuting  Attorney  not  Based  on  Evidence 481 

Reasonable  Doubt  Defined 481,  482 

Rule  of  Reasonable  Doubt  does  not  Extend  to  Each  Link  in  the 

Chain  of  Testimony 483 

Execution. 

Conclusive,  when 351 

Indorsement  Conclusive,  when 352 

Justification  Under 352 

Interest  of  Joint  Owner  Taken  on 352 

Lien  of  by  Statute 354 

Factors  or  Commission  Men. 

Are  Agents 134 

Good  Faith  Required 134 

Degree  of  Care  Required 134 

May  Conform  to  Rules  of  the  Market 13 1-136 

]\Iust  Conform  to  Rules  and  Usages 136 

Margins 137 

Factors'  Lien 138 

Right  to  Sell  "Without  Permission 138 

When  may  not  Sell 139 

Selling  Without  Orders 139 

Account  Stated 140 

F.\LSE  Imprisonment. — See  Trespass. 

Fences. 

Temporary  Line  Fence 124 

Line  Fence  Agreed  Upon 125 

Enclosed  by  Natural  Objects 128 

Railroad  Track  to  be  Fenced 269 

What  a  Sufficient  Fence 401 

Owner  Bound  to  Fence  Against  What — See  Trespass. 

Forcible  Entry  and  Detainer. 

Title  not  Involved 140 

Entry  by  Force  not  Necessary 141 


INDEX.  XI 

Forcible  Entry  and  Detainer  (Continued) . 

The  Keal  Question  in  Issue 142 

Possession  by  Tenant 142 

Wliat  Constitutes  Possession 143 

Possession  Must  be  Actual  and  Eeal 143 

What  not  Possession 144 

Burden  of  Proof 145 

Fraud. 

Is  Never  Presumed  Without  Proof 57 

Kifflit  to  Rescind  Contract  for 86 

Of  Partner  Binds  the  Firm,  When 335 

As  Against  Creditors. 

Sale  with  Intent  to  Defraud  Creditors 158,  354 

Fraudulent,  Though  for  a  Good  Consideration,  When 158 

Must  be  a  Change  of  Possession 158 

Eetaining  Possession  After  Sale,  Fraud  per  se    159-160 

Must  be  Outward  Visible  Signs  of  Change  of  Possession 159-160 

Priority  of  Possession  Under  Execution 161 

Retaining  Possession — Presumptive  Evidence  of  Fraud 161 

Good  Faith  a  Question  for  the  Jury,  When • 162 

Possession  Evidence  of  Ownership 162 

Possession  not  Evidence  of  Ownership,  When 163 

Only  Such  Cliange  Required  as  Can  Reasonably  be  Made 163-164 

Property  in  Possession  of  Third  Person . 164 

Symbolical  Delivery 164 

Possession  may  be  by  Agent 164 

Possession  of  Growing  Crops ,    164 

Temporary  Possession  of  Vendee 165 

Temporary  Possession  of  Vendor    355 

Person  Indebted  may  Sell  his  Property 165 

Debtor  may  Transfer  Property  in  Payment  of  Debts 166 

Sale  on  Credit 167 

Debtor  may  Prefer  Creditor 167 

Preferring  Wife  as  Creditor . ' 167 

Purchaser  must  be  Chargeable  with  Notice  of  Fraud 167-168 

Creditor  not  Affected  by  Knowledge,  When 168 

What  is  Sufficient  Notice  of  Fraudulent  Intent 169 

Honest  Intent  Presumed 169 

Chattel  Mortgages  as  Against  Judgment  Creditors. 

Good  Between  the  Parties  Without  Recording 169 

As  to  Creditors  must  be  Aclinowledged  and  Recorded 170 

Mortgagee  must  see  to  Statutory  Requirements 1 70 

Acknowledgment  and  Recording,  How  Proved 170 

Mortgagee  must  Take  Possession,  When 171 

Fraudulent  Mortgage  Void 171 

Note  for  More  than  Amount  Due '. 172 

Mortgage  of  Stock  of  Goods 172 

Both  Parties  must  Intend  the  Fraud 172 

Good  Faith,  How  Proved 172 

Intent  to  Defraud  must  Exist  at  the  Time 173 


XU  INDEX. 

Chattel  Mortgages  (Continued). 

SubstMiueiit  Acts  will  not  Render  Void 173 

Sales  by  Mort/Lrni^'or 173 

Mortgajje  to  Secure  Future  Advances 173 

Possession  by  Mortgaj^ee 17-t 

Possession  by  Mortsajjor  after  Default 174 

Fraud  and  Circumvention  in  Procurinj^  Contract 83 

Fraud  and  Circumvention  in  Procuring  Note — See  Negotiable 
Instruments. 

Fi:AUP  AND  Deceit. 

False  Representations 14') 

Proof  of  Fraud 145 

Degree  of  Proof  Required 146 

Representations  must  be  of  the  Past  or  Present 146 

Must  be  Designed  to  Injure 147 

Injury  must  be  Shown 117 

Scienter  must  Appear  from  the  Evidence 147 

Expression  of  Opinion 147 

Each  may  Exalt  Value  of  his  own  Property 148 

All  Statements  as  to  Value  of  Property 148 

Representation  as  to  the  Law 14 S 

Mere  Silence  is  not  Fraud,  When 14y 

Purchaser  Knowing  Himself  Insolvent 149 

Purchase  with  Intent  not  to  Pay 14 'J 

Drawing  Check  Without  Funds 14'.) 

Sale  of  Personal  Property — Concealed  Defects 150 

Contract  Procured  by  Fraud 83,  150 

Stating  as  True  when  a.Party  has  no  Reason  for  Belief 150 

Suit  for  Fraud — What  must  be  Proved 151 

Action  not  on  the  Contract 152 

Co-Defendant  not  G uilty 152 

Sales  Procured  by  Fraud 152 

Right  to  Rescind 153 

Sale  not  Void  but  Voidable 153 

Contract  may  be  Ratified,  How 153 

What  is  Ratification 154 

Innocent  Purchaser  from  Fraudulent  Vendee 154 

Purchaser  Without  Notice 155 

Goods  Transferred  in  Payment  of  Debt 155 

Attaching  or  Execution  Creditor 156 

Purchaser  must  Exercise  Reasonable  Caution 156 

Every  False  Affirmation  does  not  Amount  to  Fraud 157 

A  Party  only  Bound  to  use  Reasonable  Caution 157 

Shipping  Valuables  as  Baggage  i-;  a  Fraud  on  the  Carrier 64 

Must  be  Discovered  Before  the  Statute  of  Limitations  begins  to 

Run 202 

Good  Faith,  Presumed 67 

Growing  Crops. 

Possession  of 104 

Title  in 195-196 


INDEX.  Xlll 

Growing  Crops  (Coniinued). 

When  Personal  Property 355 

Levy  on  and  Taking  Possession So.'j 

Officer  Selling 3y« 

Guarantor. — See  Negotiable  Instruments. 

Highways. 

How  Created 175 

Presumption  from  Laying  Out  and  Working 175 

Existence  of,  How  Proved 175 

Condemnation,  How  Proved 17(J 

Actual  Location  must  Prevail 176 

Monuments  Control  Courses  and  Distances 17(5 

What  is  Prima  Facie  Evidence  of  Location 177 

Collision  on 265 

Dedication. 

What  Constitutes 177 

What  is  Meant  by 177 

Must  be  Made  by  Owner 177 

No  Particular  Ceremony  Required 177 

No  Specific  Time  Required 178 

Must  be  Accepted 178 

Owner  must  Intend  to  Dedicate 1 78 

Binding  on  the  Owner  and  all  Claiming  Under  him 1 7lt 

By  Sale  of  Lots  Bounded  on  Streets 170 

Prescription. 

What  is 17!) 

Travel  must  be  Confined  to  Particular  Route 180 

Highway  Crossing. — See  Negligence  by  Railroad  Companies. 

Homicide. 

Generally HOG 

Murder  Defined 50(i 

Express  Malice,  What 50 (i 

Imphed  Malice  Defined 507 

Presumption  from  Killing 607 

Voluntary  and  Involuntary 506,507 

Blow  with  a  Deadly  Weapon 508 

Blow  with  a  Deadly  Weapon,  no  Considerable  Provocation 500 

Words  no  Sufficient  Provocation 510 

Party  Intends  Natural  Results  of  his  Acts 510,  521 

Cause  of  the  Death  Must  be  Proved 510 

Wound  not  Necessarily  Fatal 511 

Murder  in  the  First  Degree 511 

Murder  in  the  Second  Degree 612 

Elements  of  Murder  in  First  Degree 512 

No  Lengtli  of  Deliberation  Required 5 1  ."> 

Premeditated  Design 614 

Intoxication  Affecting  Intent ' 514 

Drunkenness  no  Excuse  for  Crime 525-521) 

Murder  by  Poisoning 515 


XIV  INDEX. 

Homicide  (Continued). 

Death  Hastened  by  Poisoning?  515 

How  Proved  by  Cirouiustantial  Evidence r)16 

Must  Exclude  every  Reasonable  Hypothesis,  etc 516 

Doubt  as  to  w'hicli  of  Two  or  More 517 

Maunl(tii{ihl(  r. 

Words  of  Provocation  will  not  lleduce  Murder  to  Manslaughter,  517 

Verdict  may  be  for  Manslaughter 518 

Voluntary  and  Involuntary  Defined 511) 

Malice. 

Delined 520 

Presumed,  When 520 

Aforethought 520 

Implied,  When 521 

Insanity. 

Test  of  Criminal  Responsibility , . .  521 

When  not  Responsible .' 522 

Different  Rules  as  to  Burden  of  Proof 522 

Reasonable  Doubt  as  to  Sanity 522 

Sanity  Presumed 523 

Impulse  of  Passion  no  Defense 524 

Act  must  be  in  Consequence  of,  etc 524 

Partial 524 

Must  be  the  Efficient  Cause 524 

Test  of 525 

Self- Defense. 

Danger  Need  Not  be  Real 527-528 

Force  may  be  Resisted  by  Force 52'J 

Assailant  Retiring  from  the  Fight 530 

Defense  of  Habitation 530 

Attack  Provoked  by  Defendant 5:'.l 

Danger  Must  be  Reasonably  Apparent 531 

Reasonable  Doubt  as  to  Apparent  Danger 532 

Husband  and  Wife — See  Married  Women. 

Identity,  Proof  of— See  Burglary. 

Impeachment  of  Witness— See  Witness. 

Innocent  Purchaser. 

From  Fraudulent  Vendee 154 

Witliout  Notice ].'i,"» 

Taking  Note  as  Security 303 

Taking  Note  in  Payment 303 

Assignee  with  Notice  from  Assignee  Without 303 

Insanity. 

As  Affecting  Criminal  Responsibility 521-522 

Partial 624 

(Al.HO,  see  WHIh  and  Homicide.) 

Instructions. 

Their  Form  and  Requisites 9 

Statute  of  Illinois 9 


INDEX.  XV 

Instructions  {Continued). 

Statute  of  Iowa 10 

Statute  of  Indiana ID 

Statute  of  Michigan 10 

Statute  of  Ohio 10 

Statute  of  Wisconsin 11 

Must  be  in  Writing 11 

Improper  for  Court  to  Make  Remarks 11 

In  Writing  may  be  Waived 12  _ 

Court  may  Instruct  Without  Being  Asked 12 

Duty  of  Court  to  Instruct 12 

Should  be  Clear,  Accurate  and  Concise 13 

Should  not  be  Argumentative 14 

Should  be  Confined  to  Matters  of  Law  14 

Should  not  Submit  Questions  of  Law  to  the  Jury 14 

Degree  of  Care  Koquired  in  a  Given  Case  is  a  question  of  Law. .  15 

Abstract  Propositions  of  Law  Should  Not  be  Given,  When 15 

Should  not  Ignore  Facts  Proven 15 

Should  not  Give  Undue  Prominence  to  Portions  of  the  Evidence  1(5 

Should  not  Give  Prominence  to  Unimportant  Facts 1(> 

Should  be  Given  When  There  is  any  Evidence,  etc 16 

Must  not  Assume  Facts  Not  Admitted 17 

Facts  not  Controverted  may  be  Assumed 17 

May  Assume  what  the  Law  Presumes 18 

When  all  Material  Allegations  are  Proved 18 

Construction  of  Contracts ...    18 

Should  be  Confined  to  the  Issues  Being  Tried VJ 

Should  be  Based  on  the  Evidence 20 

One  Instruction  may  be  Limited  by  Others 21 

Should  be  Considered  all  Together 21 

Error  Will  not  Always  Reverse 21 

Must  be  Construed  in  Connection  with  the  Evidence 22 

When  Error  Will  Reverse 22 

Should  be  Harmonious 22 

Must  Require  the  Jui-y  to  Believe  from  the  Evidence 23 

Need  not  be  Repeated,  When 23 

Instructing  as  in  Case  of  Non-suit 24 

Error  in  Admitting  Evidence  Obviated  by 24 

When  not  Obviated  by 24 

Effect  of  Evidence  Limited  by 24 

Jury  may  Come  in  for  Further  Instructions 25 

The  Giving  of  Further  Instructions  is  in  the  Discretion  of  the 

Court 25 

Court  may  Limit  the  Time  for 25 

In  Criminal  Cases,  Jury  are  the  Judges  of  the  Law  and  Facts —  26 

Intent. 

When  Material  in  Trespass 381,  390 

In  Criminal  Cases — See  Assault  ivith  Intent,  etc. 

Felonious  Intent — See  Larceny. 

Party  Presumed  to  Intend  Natural  Results  of  his  Acts .,  .510,  521 


XVI  INDEX. 

Intoxicating  Liquoks. 

Suit  by  Wife,  Statutory  Provisions 181 

Wliat  Must  be  Provod 181 

Derondants  Jointly  and  Severally  Liable 182 

Sufliciont  if  the  Liquor  Sold  Contributed 182 

Owner  of  Premises  not  Liable,  When 182 

Suit  A;rainst  Saloon-keeper  and  Owner  of  Buildin<;  Juintly 183 

Propriety  of  tlio  Law  not  a  Question  for  the  Jury 1S;5 

Burden  of  Proof,  What  Must  be  Proved 184 

Proximate  Cause,  What 184-185 

New  or  Intervening:  Cause 18(> 

Preponderance  of  Evidence  SulTieient 186 

Good  Faith  not  a  Mitigation,  When 186 

Verdict  Must  be  Founded  on  the  Evidence 187 

Joint  Wkong-Doers. — See  Aiders,  Abettors,  etc. 

Jury. 

Have  no  Eight  to  Disregard  the  Testimony  of  a  Witness  Without 

Cause 31 

When  may  Disregard  Testimony  of  a  Witness 32 

Sliould  Reconcile  the  Testimony  if  Possible :}2 

Weight  of  Testimony  a  Question  of  Fact  for  the 2:) 

Verdict  of,  to  be  Determined  by  the  Evidence  Alone 4-t 

May  Believe  Part  of  an  Admission  and  lleject  Part 41 

Propriety  of  the  Law  not  a  Question  for 1S3 

May  come  in  for  Further  Instructions.   2  J 

In  Criminal  Cases  arc  the  Judges  of  the  Law  and  Facts 2(j 

Must  Take  the  Law  from  the  Court 433 

Landlord  and  Tenant. 

Suit  for  Rent ..  187 

Occupant  Liable  for  Rent.  When— Illinois 188 

Surrender  of  Premises,  How .Effocted   188 

Surrender  Must  be  Assented  to'by.  Landlord 189 

Eviction  from  Whole  or  any  Material  tart  Stops  the  Rent 18!) 

Forcible  Expulsion  not  Necessary 190 

Acts  of  Trespass  not  Eviction 191 

What  Constitutes  Eviction IDI 

Landlord's  Lien  for  Rent— Illinois  , l'.)2 

Levy  of  Distress  Warrant  not  Necessary  to  Perfect  Lien I;i2 

Lion  Against  Purchaser  from  Tenant,  When 193 

Tenant  Holding  Over— Contract  Implied I'.i3 

New  Contracit  Implied,  When I'.i4 

Wrongful  Holding  Over--IIlinols 194 

Tenant  can  not'Dony  Landlord's  Tith; 19.5 

Landlord  not  Bound  to  Repair 19,') 

Title  to  Crops— Is  in  the  Tenant 195 

Contra— Title  in  Both  Landlord  and  Tenant 196 

Larceny. 

Crime  Defined 53;] 

Every  Material  Alleffation  Must  be  Proved 5J3 


INDEX.  XVU 

Larceny  {Continued) . 

Value  Must  be  Proved r)3r, 

Name  of  Party  Injured  Must  be  Proved Ct'.v.', 

Special  Property  Sufficient •'•--t 

Criminating'  Circumstances  Proved 5:;! 

Person  Having  Possession  of  Property  Must  be  Called  as  a  Wit- 
ness    •''••'■4 

Taking  Must  be  with  Felonious  Intent 51]  J 

Taken  Under  Claim  of  Plight 535 

Possession  Obtained  by  Fraud,  with  Intent 530 

Money  must  be  Proved  to  be  Genuine 537 

Presumption  fi'om  Possession  of  Stolen  Property 537 

Possession  Explained 538 

As  Bailee. 

Meaning  of  the  Term 538 

Felonious  Intent  Necessary 538-539 

Taken  with  Intent  to  Repay  HimseK 538-539 

Levy  of  Execution. 

What  Constitutes 392 

Invalid,  When 393 

Colorable  Levy  Invalid 393 

Libel. 

Plea  of  Justification  Filed 190 

Malice  Presumed,  When 197 

Plea  of  Justification  an  Aggravation,  When 197 

Mitigation  of  Damages 198 

General  Issue  Impliedly  Admits,  etc 198 

Measure  of  Damages 231 

Lien. 

Of  Common  Carrier ,..  81 

Factor's  Lien 138 

Of  Landlord  for  Rent— Illinois 192 

Levy  of  Distress  Warrant  not  Necessary 192 

Landlord's  Lien  Against  Purchaser  from  Tenant 193 

Of  Judgment  and  Chattel  Mortgage 357 

Of  Warehouseman 411 

Limitations. 

Statute  a  Bar,  When 199 

Payment  a  New  Promise 199 

When  the  Statute  Begins  to  Run 199 

Running  Accounts 200 

Absence  from  the  State 200 

Debt  Revived  by  New  Promise 201 

The  Promise  Must  be  a  Promise  to  Pay  the  Debt 201 

What  Amounts  to  a  Promise 20 1 

What  is  not  a  Promise 201 

Does  not  Begin  to  Run  Until  Fraud  Discovered 202 

Malice. 

How  Proved .,.-, 640 


XVlll  INDEX. 

Malice  (Contimied). 

Express,  Defined 362,  50G,  520 

Implied,  Defined 5ii7 

Implied,  AVhen 521 

Aforethoufjht .'>20 

Presumed,  "When 520 

Malicious  Mischief. 

Crime   Defined 540 

Miilice,  how  Proved 540 

Ownership,  how  Proved 540 

Ownership  Must  be  Proved  as  Alleged 540 

Injury  Must  be  Proved  as  Alleged 54 1 

Malice  Must  be  Proved 541 

Malice  Against  the  Owner  Must  be  Shown 541 

Malicioi's  Prosecution. 

What  Must  be  Proved 202 

Want  of  Probable  Cause  must  be  Proved 203 

Charge  Must  be  Wilfully  False 203 

Arrest  Without  Probable  Cause 203 

What  is  Probable  Cause 203 

Malice  may  be  Inferred  from  Want,  etc 204 

Burden  of  Proof  on  the  Plaintiff 20.> 

What  is  Want  of  Probable  Cause 200 

Want  of    Probable   Cause  Cannot  be  Inferred  from  Pi-oof  of 

Malice 20fi 

Not  Necessary  that  a  Crime  should  have  been  Committed 2()7 

The  Prosecution  Must  be  Ended 2(17 

Discharge  by  Justice 2().S 

By  Advice  of  Counsel 208-2tH» 

Presumption  from  Good  Character 2o9 

Malpractice. 

Warranty  of  Skill,  etc.,  Implied 210-212 

Patient  Bound  to  Follow  Instructions 212 

Burden  of  Proof 213 

Ordinary  Skill  Defined 452 

Married  Women. 

May  Own,  Manage  or  Convey 214 

May  Employ  Husband  as  Agent 215-210 

When  Liable  for  llepairs  on  House 2  Iti 

Husband  May  Give  to  Wife,  When 217 

When  Proceeds  of  her  Farm  Belong  to  Husband 217-21S 

What  not  Separate  Estate  as  to  Creditors 21{S-211» 

Wife  may  Give  Property  to  her  Husband . .         220 

Husband  Entitled  to  Earnings  of  Minor  Children 22(1 

Work  and  Labor  by— Illinois 220-222 

Husband  Liable  for  Goods  Furnished  Wife,  When 339-2  U) 

Master  and  Servant. 

Master  Liable  for  Injury  to  Servant,  Wiien 204->29.> 

(See  Ncgliyenct  by  Raihoad  Companies.) 


INDEX.                              ^  XIX 

Measuee  of  Damages. 

Generally  How  Determined 241 

Death  from  Negligent  Act 222-223 

Death  from  Intoxication. 

Suit  by  Widow 224 

Damage  can  not  be  Given  for  Mortification  or  Mental  Suffering 

of  Wife 224 

Exemplary  Damages 224 

Personal  Injury. 

From  Defective  Sidewalk 253 

Damages  May  be  allowed  for  Permanent  Injury 225-226 

Exemplary  Damages  in  Tort  Generally 227 

Fraud  and  Deceit. 

Not  Necessarily  Confined  to  Actual  Damage 334 

What  is  Actual  Damage 334 

In  Assault. 

Exemplary  Damages 227 

Aggravation  of  Damages 228 

Mitigation  of  Damages 228,  384 

Exemplary  Damages  not  Allowed,  When 228 

Landlord  and  Tenant. 

Premises  Not  Occupied— No  Eent  Paid 229 

In  Libel. 

Jury  should  Consider,  What 231 

Filing  Plea  of  Justification  an  Aggravation  of 197 

When  Not  an  Aggravation 197 

Mitigation  of 198 

Slander. 

Words  Actionable,  per  se 237 

Damages  Presumed,  When 238 

Pecuniary  Circumstances  of  Defendant 238 

Words  Spoken  in  Heat  of  Passion 238 

Drunkenness  in  Mitigation 239 

Plea  of  Justification  Must  be  Filed  in  Good  Faith 239 

Exemplary  Damages  May  be  Given,  When 239-240 

In  Siiit  on  Bond. 

Keplevin 230-231 

In  Malpractice. 

Jury  Should  Consider  What 232 

Marriage  Contract. 

In  Breach  of 232-233 

In  Fraud  and  Deceit 234 

Exemplary  Damages  Defined 242 

Work  arid  Labor. 

Part  Performance 235 

Contract  to  Deliver — Part  Performance 235 

Kefusal  to  Deliver  Personal  Property. .  • 235-236 

Property  Bought  for  Re-sale 236 

Refusal  to  Accept  Personal  Property 237 


\K  INDKX. 

Common  Carriers. 

Loss  of  Baggage 2-11 

Goods  Lost 241 

In  Breach  of  Contract  for  Fiitur.'  Delivery 97 

In  Trenpass. 

Good  Faith  in  Mitigation 388 

Exemplary  Damages 241,  388,  395 

In  Trover. 

■SVhat  Must  be  Shown  to  Reduce 234 

Suit  by  General  Owner 412 

By  One  Having  Special  Property 412 

By  Lien  Holder 413 

Against  Lien  Holder 413 

In  Wnrrn7ity. 

On  Breach  of. 431 

On  Entire  Contract. 

On  Breach  of 460 

For  Work  and  Labor 457 

^Mistake  of  Fact. 

Eight  to  Rescind  Contract  for 87 

Mortgage. 

Deed  by  Way  of 119 

(Chattel  Mortoage.—See  Fraud  as  Agaitist  Creditors.) 

Motive. 

Want  of,  in  Criminal  Cases 474 

MvNiciPAii  Corporations. 

Liable  for  Unsafe  Conditions  oC  Streets, When 242 

Duty  Imposed  by  Law 243,  240 

Duty  to  Provide  Guards  and  Notice 244 

Streets  Include  Sidewalks   : 244 

Accident  and  Negligence 24.i 

Reasonable  Care  and  Caution,  What 24."> 

Care  Must  be  Proportionate  to  tiie  Known  Danger 24.) 

Slight  Negligence  will  not  Dcfrat  Recovery 24.') 

Degree  of  Care  Required 246 

Negligence  of  Driver 246 

Not  Obliged  to  Open  Streets 246 

Do  Not  Insure  the  Safety 247 

Liable  for  Negligence  of  Others.  When 247-248 

Not  Liable  for  the  Negligence  of  Others,  When 248-249 

Defective  Sidewalk— Notice  of  Presumed,  When 24D 

Must  have  Notice  Actual  or  Constructive 2.jO 

Changing  Grade  of  Sireet. 

Injury  to  Adjoining  Property 2.)1 

Liable  for  Want  of  Reasonable  Caro  Only 2.)l-2r)2 

Changing  Water  Courses 2.');5 

Measure  of  Damages 253 

ilCRDEK.— iSee  Homicide, 


INDEX.  XXI 

Negligence,  Generally. 

Burden  of  Proof  254 

Degree  of  Care  Required 254 

Ordinary  Care  Required 2o4 

Plaintiff  must  Exercise  Reasonable  Care ^55 

Of  Servant,  Master  Liable  for 255-250 

Servant  must  bo  Acting  AVithin  Scope  of  Employment 256 

Wrongful  Act  of  Servant 257 

Must  be  Proximate  Cause 257 

Of  Contractor 258 

Contributory  and  Gross 2o9 

Contributory  and  Slight 260-262,  270 

Death  Caused  by 262 

Equal  Negligence 263 

Injury  the  Result  of  Accident,  and 263 

Voluntary  Exposure  to  Danger 264 

Ordinary  Care  Defined 264 

Ordinary  Sldll  Defined 452 

Slight  and  Gross  Defined 264 

Collision  on  Highway 265 

Of  Common  Currier. 

Injui-y  to  Passenger,  Prima  Facie  Evidence  of 58  ,261) 

Cannot  be  Avoided  by  Contract "7 

Not  Liable,  When ''^ 

Of  Railroad  Companief^. 

Duty  to  Furnish  Safe  Machinery,  etc 266 

Liable  for  Torts  of  Servant 266 

Negligence  per  se •. 266 

Plaintiff  must  Exercise  Ordinary  Care 267 

Right  to  Make  Rules  267 

Expelling  Passenger 268 

Passenger  can  Only  be  Put  OIT  at  Station 269 

Fencing  Track. 

Statutory  Provision 269-270 

Must  Exercise  Reasonable  Care  to  Prevent  Injury  to  Animals  . .  270 

Casual  Breach  in  Fence 271-2/2 

Stock  Unlawfully  Running  at  Large 273 

Plaintiff's  Contributory  Neglig(;uce   274 

Stock  Escaping  and  Running  at  Large 274 

What  must  be  Proved 275 

Injuries  by  Fire. 

Prima  facie  Negligence 275 

Reasonable  Care  to  Prevent 276 

Must  Provide  Approved  Apparatus 277 

Dry  Weeds  and  Grass 278 

Care  Required  of  Land  Owner 2i<) 

Degree  of  Care  Required  of  Company 280,  287 

Highway  Crossing. 

Must  be  Put  In  Safe  Condition 281 

Care  Required  at 281 

Signals  to  be  Given  at 2S- 


XXll  INDEX. 

Iliyhircnj  Cronftinr;  (Coirtinued). 

Eights  at,  Equal  and  :\Iutual 282 

View  of  Track  Obstructed 283 

Care  Required  of  Travelers 281-285 

Care  must  be  Proportionate  to  Known  Danger 285 

Contributory  and  Gross  Negligence 286 

Negligence  per  se  in  Traveler 287 

Negligence  Charged  must  Cause  Damage 288 

Injury  to  Stock  at 288-200 

Neglect  to  King  Bell  Prima  Facie  Evidence,  etc 289 

Speed  Through  Cities  Limited  by  Ordinance 290 

Speed  Through  Cities  not  Limited  by  Ordinance .- . . .        291 

Contributory  Negligence  of  Childi'cn 291-293 

Liable  to  Servant,  Wlien. 

Bound  to  Employ  Reasonable  Care  and  Skill 294-296 

Servant  Takes  Risks  Incident  to  Business 296,  298 

Servant  not  Bound  to  Enquire,  etc 296 

Negligence  in  Employing  Servant 297 

Degree  of  Care  Required 297 

Servant  Having  Knowledge  of  Defects 299 

Servant  must  Use  Reasonable  Care 299 

Negligence  of  Fellow- Servant 300 

Fellow-Servant  Defined 300-301 

Duty  to  Make  Rules,  etc 301 

Of  Municipal  Corporations. 

Slight,  of  Plaintiff,  will  not  Defeat  Recovery 245 

Of  Driver : 246 

{See  Municipal  Corporations.) 

NeGOTI.VULE  iNSTRfMENTS. 

Presumption  in  Favor  of  the  Holder 302 

Presumption  can  Only  be  Overcome  by  Proof 302 

Taken  as  Security — Airinnocent  Purchaser  . ., 303 

Not  Taken  in  Payment  or  Part  Payment,  etc 303 

Assignee  with  Notice  from  an  Assignee  Without 303 

Indorsement  in  Blank 304 

Assignee  After  Maturity 304 

Assignee  Before  Maturity  Without  Notice,  etc 304-305 

Assignment  Without  Consideration 304 

Assignee  with  Notice  of  Suspicious  Facts 305 

Who  Deemed  a  bona  fide  Holder 306 

Assignee  with  Knowledge 3U6 

Liability  of  Guarantor  of  Collection  or  Assignor  Under  Illinois 

Statute— Note 307 

Liability  Fixed  by  Statute 307 

Intention  does  not  Govern 307 

Due  Diligence  Defined 307-309 

Proof  of  Due  Diligence 308 

Suit  Unavailing 309 

Part  of  Note  Collectable 310 

Insolvency  of  Maker 310 


INDEX.  XXill 

Negotiable  Instruments  {Coniinued). 

Execution  Returned— No  Property  Found 311 

Insolvency,  How  Proved 311 

Return  not  Conclusive 311 

Execution  from  Justice 311 

Possession  of  Personal  Property  Evidence  of  Ovpnersliip 312-313 

Cruarantor  of  Payment. 

Liability  of  Endorser  and  Guarantor 314 

Liability  Fixed  by  Contract 314 

Name  of  Third  Person  on  Bacli  of  Note 314 

Liability  Continues  how  Long 315 

Delay  will  not  Release 315 

Consideration  Necessary 315 

What  Agreement  Releases  Guarantor 315-315 

Subsequent  Promise  to  Pay 316-317 

Failure  or  Want  of  Consideration. 

Burden  of  Proof 318 

Considei'ation  Presumed , 318 

Abandonment  of  Claim  Good  Consideration 319 

Claim  must  be  Sustainable 319 

Without  Consideration,  Void,  When ,    319 

Obtained' by  Fraudulent  Representations. 

What  Must  1)0  Proved 320 

Representation  Must  be  Material 320 

Obtained  by  Fraud  and  Circumvention.    . 

Void,  When 320-322 

Fraud  in  Consideration  not  Sufficient 322 

Signing-  Without  Reading 323 

Mistake  as  to  Legal  Effect 324 

Maker  must  use  Rea,sonable  Care  to  Avoid,  etc 324 

What  is  Reasonable  Care 324 

Burden  of  Proof 325 

Stolen  or  Wrongfully  Obtained 325 

Maker  Liable,  When 325 

Duress,  What 326 

Moral  Coercion 326 

Lawful  Imprisonment  not  Duress 327 

Notice. 

Carrier's  Liability  not  Limited  by 76 

Of  Exemption  Binding  on  Shipper,  When 77 

Of  Exemption  not  Binding  Shipper,  When . .  77 

To  Municipal  Corporation,  of  Defective  Sidewalks,  Presumed, 

When 249 

Must  have  Actual  or  Constructive  Notice  of  Defective  Sidewallis,  250 

By  Possession 130 

To  Agent,  Notice  to  Principal 328 

To  Corporation,  How  Given 329 

Knowledge  of  Facts  Calling  for  Inquiry 329 

Recitals  in  Deed 330 

Of  Unrecorded  Deed 330 

To  Agent,  Binding,  When 344 


XXIV  INDEX. 

Option  Contracts.-   See  Contracts. 
Officer. 

Justification  by.  in  Trespass 391 

PARTNEILSHII'. 

Wlio  iiro  Partners  in  Fact 330 

How  Formed 330 

As  to  Tliird  Persons 331 

Holding  Oneself  Out,  etc 331-332 

In  tlie  Name  of  one  Partner 332 

Test  of  Partnership 333 

Power  to  Bind  the  Firm 333 

"Wliat  Acts  do  not  Bind 334 

Partner  Using  Credit  or  Effects  of 334 

Acts  Beyond  the  Scope  of  Business 335 

Bound  by  Katiflcation 335 

When  Fraud  of  one  Partner  Binds  the  Firm 335 

Notice  of  Dissolution  Necessary,  When 33G 

Cannot  Sue  Each  Other  at  Law 336 

Wiien  may  Sue  at  Law 337 

PaXvTY. 

Competent  Witnesses 39 

Not  Compelled  to  Testify 39 

Testimony  of,  to  be  Weighed  by  Jury 39 

Verbal  Admissions  of,  How  Weighed 40-42 

When  not  Estopped  by  Admissions 42 

When  not  Bound  by  Offer  to  Compromise 42 

Not  Bound  by  Statements  of  his  own  Witness 44 

Capacity  to  Contract 81 

PAS.SENGERS. — See  Common  Carriers. 

Payment. 

Part  Payment  in  Full 85 

Part  Payment  by  Strangers 85 

Performance. 

Tender  of 97 

Perjury. 

Proof  to  Authorize  Conviction 542 

Materiality  of  Evidence  Sufficient,  When 542 

One  Witness  Sufficient,  When 543 

Authority  of  Officer  must  be  Shown 543 

Te-stimony  must  be  Proved  as  Alleged 544 

Must  be  Wilfully  and   Knowingly  False 544 

No  Pteasonable  Grounds  of  Belief 544 

Official  Character  of  Justice  must  bo  Shown .')45 

That  the  Accused  was  Sworn  must  be  Shown 545 

More  than  one  Witness  Required,  When 545 

Wiuit  Must  bo  Proved MH 

Matcri.-Uity  must  be  Shown .^-J7 

Test  of  Materiality iil7 


INDEX.  XXV 

Non-Pekformance. — See  Contract. 

Prevented  by  Defendant 453 

Substantial 454 

Payment,  Condition  Precedent 455 

PliEA. 

Of  Justification  in  Libel 197-198 

Of  Justillcation  in  Slander  Must  be  Filed  in  Good  Faith 239 

Of  Justification  in  Slander,  How  Proved 369-370 

When  Plea  does  not  Impute  Crime,  How  Proved 371 

Office  of  the  Plea 372 

Possession. 

What  Sufficient  to  Maintain  Trespass 389 

Of  Real  Estate  Presumed  to  be  under  Legal  Title 117 

Eight  to.  Must  be  Shown  in  Ejectment 117 

Prima  Facie  Evidence  of  Title 120 

One  First  in  Possession  has  the  Better  Title 120 

Deed  from  Party  Claiming 121 

What  Constitutes,  of  Heal  Estate 127,  143 

What  docs  not  Constitute 144 

What  Constitutes,  of  Woodland 128 

How  Possession  of  Land  may  be  Held 128 

Enclosure  by  Natural  Objects 128 

Not  under  Color  of  Title 128 

According  to  Boundaries  in  Title  Papers 129 

Notice  by 130 

Of  Personal  Property. 

Change  of,  on  Sale  of. — See  Fraud  as  Against  Creditors. 

Of  Personal  Property,  Evidence  of  Title 162,  312,  353,  354 

Temporary  Possession  by  Vendor 355 

Sufficient  to  Maintain  Trespass 389 

As  Against  a  Wrong-Doer 390 

Evidence  of  Title  in  Trover 404 

Temporary,  not  Delivei-y,  When 410 

Symbolical  Deliver  of 164 

May  be  by  Agent 164 

Of  Growing  Crops 164 

Temporary,  of  Vendee 165 

Adverse  Possession. 

Without  Color  of  Title 121 

Must  be  Hostile  in  its  Inception 122 

Permissive,  Not  Hostile 122 

Subservient  to  the  True  Owner 122 

Presumed  to  be  Under  Legal  Title 122 

Paper  Title  not  Necessary •  ■  •  • 123 

By  Successive  Holders 124 

Deed  not  Necessary  to  Transfer 124 

Temporary  Line  Ff  nee 124 

Line  Fence  Agreed  Upon 125 

Under  Color  of  Title,  Payment  of  Taxes 125 

Burden  of  Proof 126 

What  must  be  Shown  Under  Limitation  Law 126 


XXVI  INDEX. 

Prescription — See  Iliiih waijti 

rEiNCiPAij  AND  Agent. 

Scopft  of  General  Instructions 337 

Dop;irtiirc  from  Business  of  Principal 337 

A}?ency  Presumed  to  Continue,  Wlien 837 

^Varranty  by  Ap:ent 338 

Public  Oflicer  a  Special  Agent 338 

Wlien  Principal  Liable  for  Torts 339 

Goods  Furnished  Wife  or  Minor  Child  339 

Goods  Furnished  After  Desertion  by  Wife 340 

Agent  Personally  Liable,  When 343 

Notice  to  Agent,  When  Binding 344 

Good  Faith  Eequired  of  Agent 344 

Corporations  only  Act  by  Agent 344 

Individual  Members  of  Board  Cannot  Act 345 

Ralijicallon  of  AoanVH  Ada. 

Principal  must  Dissent  from  Unauthorized  Acts 341 

Must  be  Avith  Full  Knowledge 342 

Cannot  be  as  to  Part  Only 342 

Corporations  may  Eatify,  etc 345 

Permitting  One  to  Hold  Himself  Out,  etc 343 

Promise — See  Limitation. 

Proximate  Cause. 

Wliat  is 184-185 

Negligence  Charged  Must  be 237 

Public  Officer. 

Is  a  Special  Agent 338 

Individual  Members  of  Board  Cannot  Act 345 

PURfllASER. 

Must  Exercise  Eeasonable  Caution 15G-I57 

Eape, 

Crime  Defined 548 

Submission  Through  Fear 548 

Complaining  to  Others 548 

Consent  Given 549 

Female  Bound  to  Eesist 549 

Power  of  Eesistance  not  Overcome,  etc 550 

Contact  of  Sexual  Organs  Necessary 550 

Character  of  the  Woman  may  be  Shown  to  Affect  Credit 550 

Character  of  Woman  no  Defense 550 

No  Outcry  Made 551 

Assault  with  Intent,  etc 551 

Eeasonable  Doubt  as  to  Intent 5.52 

E.\tification. 

What  Is 154 

Fraudulent  Purchase  may  be  Eatified 153 

Act  of  Partner  may  bo  Eatified 335 

Of  Agent's  Acts — See  Principul  (tnd  A(ient 

Trespasser  by 396 


INDEX.  XXVll 

Keceipt. 

Prima  Facie  Correct 51 

May  be  Contradicted 51 

Evidence  of  Goods  in  Good  Order 72 

Notice  of  Exemption  in   Carrier's  Eeceipt,   wlien  Binding  on 

Shipper 77 

"When  Notice  of  Exemption  not  Binding  on  Shipper 77 

Eemaeks. 

By  the  Court  in  Presence  of  Jury 11 

Keplevin, 

When  the  Action  Lies 346,  347 

Eight  to  Possession  Sufficient 346 

What  Must  be  Proved 347 

Wrongful  Detention,  How  Proved 348 

When  Demand  not  Necessary 349 

Contesting  Plaintiff's  Title,  no  Demand  Necessary 349 

When  Demand  Necessary 350 

Wrongful  Taking  or  Demand  Must  be  Proved 351 

What  Essential  to  a  Demand 351 

Against  an  Officer. 

Property  Taken  on  Execution 351 

Execution  Conclusive,  When 351 

Executions  and  Indorsements  Prima  Facie  Evidence,  When 352 

When  Demand  Necessary 352 

Levy  on  Interest  of  Joint  Owner 352 

Plea  of  Property  in  A.  and  B 353 

Burden  of  Proof 353 

Plea  of  Property  in  a  Stranger 353 

Possession  Evidence  of  Title 353 

Li«n  of  Execution  by  Statute 354 

Fraudulent  Sale  as  Against  Execution 354 

Temporary  Possession  by  Vendor 355 

Growing  Crops,  When  Personal  Property 355 

Levy  on  Growing  Crops,  and  Taking  Possession 355 

Building  Personal  Property,  When 356,  357 

Lien  of  Judgment  and  Chattel  Mortgage 357 

Trover,  Property  Not  Found 358 

Bailee  cannot  Deny  Bailor's  Title  358 

Eight  to  Distrain  Cattle 359 

Must  be  Taken  Damage  Feasant 360 

Kobbeky. 

Crime  Defined 552 

Facts  Constituting 552 

Taking  Must  be  by  Force  or  Fear 553 

Property  Must  be  Proved  as  Charged 553 

Verdict  may  be  for  Larceny 553 

Eesidence— See  Divorce. 


x  xvi 11  index. 

Sale. 

AVliat  is  a  Contract  of 84 

01"  Personal  Property,  Future  Delivery 95 

Procured  by  Fraud 153 

Contract  of  may  be  Rescinded  for  Fraud loii 

Contract  of  may  be  RatifuHl 153 

Fraudulent  as  Aprainst  Creditors .jji 

By  Sani[>le,  Implied  Warranty 422 

When  Xot  by  Sample 423 

For  Future  Delivery.  ^ 

Implied  Warranty  of  Kind  and  Qur.lity 424 

Of  Macliine  on  Trial 42G 

Self-Defense— See  Homicide. 

Selling  Liquor  Without  a  License. 

What  Constitutes  the  Offense 554 

Burden  of  Proof  as  to  License 554 

Sales  by  Servant 554-555 

When  Not  Liable  for  Act  of  Servant 555 

Charge  Must  be  Proved  as  Alleged 55G 

Agency  Must  be  Proved 55G 

Single  Transaction  One  Offense 55(> 

Sale  to  Minors 556 

Burden  of  Proof  as  to  Written  Ord(>r 557 

Knowledge  of  Minority  Immaterial 557 

Selling  to  a  Person  in  the  Habit,  etc 5.').s 

M(>aning  of  "In  the  Habit  of  Getting  Intoxicated" 558 

Habit  Must  Exist  at  tiie  Time 558 

In  the  Habit  of  Drinking,  Not  Enough 559 

Settlement — See  Account  Stated. 

Sidewalks — See  Municipal  Corporations. 

Slander. 

Nature  of  the  Action 361 

Malice  and  Damage  Presumed,  When 361 

Malice  Defined 362 

All  the  Words  Need  Not  be  Proved 362 

W'ords  Presumed  to  bo  Used,  How 363 

Charge  of  Dishonesty 363 

Charge  of  Adultery,  etc 363 

Charge  of  Arson  by  Innuendo 364 

Charge  of  Murder  by  Iimu<>ndo 365 

Words  Must  be  Proved  as  Charged 365 

Words  Not  Spoken  Maliciously 366,  367 

Anger  no  Justification 367 

Anger  in  Mitigation,  When 36S 

Slanderous  Words  Explained 368,  369 

All  the  Words  Need  Not  bo  Proved 36'J 

Plea  of  .Justification,  How  Proved 3Gn-37 1 

When  the  Plea  Does  Not  Impute  Crime 371 

Plea  of  Justification  Filed  in  Good  Faith 372 


INDEX.  XXIX 

Office  of  the  Plea  of  Justification 372 

Kepeating  Eeports 372 

SPECiAii  Property. 

Defined 390 

Trover,  by  One  Having 404 

In  Malicious  Mischief 540 

Streets — See  Municipal  Corporations. 
Subscription  Paper. 

Suit  on 92-93 

Sunday. 

Contracts  Made  on 90 

Tender. 

What  Constitutes  a  Valid  Tender 373 

Burden  of  Proving 374 

Made  as  a  Gift  or  Present  not  Valid 374 

Made  on  Condition  not  Valid 375 

Willingness  to  Pay  no  Tender 375 

If  Accepted,  Must  be  upon  Terms  Proposed 376 

Specifying  Objection  a  Waiver  of  Others 377 

Production  of  Money  may  be  Waived 377,  411 

Kept  Good 378 

After  Suit  Brought 378 

Equivalent  to  Payment,  When 409 

Title. 

In  Action  of  Ejectment  only  Legal  Title  Involved 116 

One  in  Possession  of  Real  Estate  Presumed  to  have 117,  122 

Can  Only  be  Conveyed  by  Deed 117 

Deduced  from  a  Common  Source 118 

One  Having  Prior  Deed  has  Legal  Title 1 18 

Possession  Prima  Facie  Evidence  of 120 

First  Possessor  has  Better 120 

Due  from  Party  in  Possession  Claiming 121 

By  Prescription,  Without  Color  of  Title 121 

By  Payment  of  Taxes  under  Color  of  Title 1 25 

Not  Involved  in  Forcible  Entry  and  Detainer 110 

Trespass — Injuries  io  ihe  Person. 

Assault  and  Assault  and  Battery  Defined 379 

Plaintiffs  First  Assault 380 

Aiding,  Abetting,  etc 380 

Evil  Intent  or  Negligence  Required 38 1 

Expelling  Trespasser 381 

Eepelling  Force  by  Force 382 

In  Defense  of  Possession 382 

Self-Defense,  Excessive  Force 382, 384 

Drunkenness  no  Justification 384 

Words  of  Provocation  no  Justificvition 384 

Words  of  Provocation  in  Mitigation  of  Damages 384 

Degree  of  Proof  Required 385 


XX\'  INDEX. 

Faxse  Imprisonment. 

What  Constitutes 385 

Who  Liable  as  Joint  Trespassers 38(; 

When  Not  Liable  as  Joint  Trespassers 387 

Part  of  Defendants  Guilty,  Form  of  Verdict 387 

Good  Faith  in  Miti^'ation 388 

Exemplary  Damages,  When 388 

Injuries  to  Personal  Property. 

What  Constitutes 389 

What  Possession  Sufficient  .■ 389 

Possession  by  Agent 389 

Possession  as  Against  Wrong-Doer 390 

Special  Property  Defined ,  , 390 

Intent  Immaterial 390 

Acts  Prima  Facie  Trespass 391 

Trespass  ab  Initio 391 

Justification  by  an  Officer 391 

Property  Taken  on  Execution 391 

What  Constitutes  a  Levy 392 

Levy  Invalid,  When 393 

Officer  Selling  Growing  Crops 394 

Seizure  under  Distress  Warrant 394 

When  Landlord  not  Liable 394 

Exemplary  Damages 395 

On  Real  Estate. 

Actual  Possession  Sufficient,  Etc 395 

Trespasser  by  Ratification 396 

By  an  Agent 396 

Entry  under  Legal  Process 397 

Abuse  of  Legal  Process 397 

Entry  Obtained  by  Fraud 398 

Joint  Trespassers 398 

Taking  Personal  Property  an  Aggravation 399 

By  Domestic  Animals. 

Different  Laws  in  Different  States.    Note 399 

Not  Permitted  to  Run  at  Large 400 

Owner  of  Land  not  Bound  to  Fence,  When 400 

Lawfully  Running  at  Large 400 

Land  Protected  by  Fence 400 

What  is  a  Sufficient  Fence 401 

Escaping  Through  Division  Fence 401-402 

Burden  of  Proof    402 

Entry  Through  Plaintiff's  Portion  of  the  Fence 402-403 

Bound  to  Fence  Against  what  Stock 403 

Tkover. 

By  General  Owner 404 

By  one  Having  a  Special  Property 404 

By  one  in  Possession 404-405 

What  Interest  Plaintiff  Must  Have 405 

Suit  by  Servant  or  Agent 406 


INDEX.  XXXI 

Tkovek  (Continued). 

What  Plaintiff  Must  Prove 40(5 

Must  Prove  Conversion 40(i 

Property  Lost  not  Conversion 407 

Demand  and  Refusal  Prima  Facie  Evidence,  Etc 407 

When  Demand  not  Necessary 407 

Wilful  Destruction  of  Property  a  Conversion 407 

Title  Claimed  by  Purchase  from  Defendant 40.S 

Tender  Equivalent  to  Payment 40!) 

When  Title  Passes  Without  Payment 409 

Temporary  Possession  by  Vendee 410 

Suit  Against  Warehouseman 410 

Warehouseman's  Lien 411 

Tender  Waiver  of  Production  of  Money 411 

Measure  ot  Damages-  Suit  by  General  Owner 412 

Damages,  one  Having  Special  Property 413 

Damages  by  Lien  Holder 413 

Damages— Suit  Against  Lien  Holder 413 

Price  Paid  Prima  Facie  Evidence  of  Value 413 

Price  Paid  not  Conclusive  Evidence  of  Value 413 

Trunk. — See  Common  Carrier. 

USTJKY. 

Interest  Forfeited 414 

Presumption  from  Payment  of 414 

Interest  Paid  to  be  Credited  on  Principal 414 

Excess  Paid  as  Commissions 415 

Attempts  to  Evade  the  Statute 415 

Contract  must  be  Proved  as  Alleged 41(j 

Note  Given  for  Usury 410 

Note  Growing  out  of  Antecedent,  Etc 417 

Bona  fide  Holder  of  Note 418 

Vekdict. 

To  be  Determined  by  the  Evidence 44 

Must  be  Founded  on  the  Evidence 187 

V/akehouseman. 

Care  Required  of ., "0 

Trover  Against 410 

Lien  of 411 

Wakeantt. 

By  Agent 338 

What  Constitutes 418 

No  Particular  Form  of  Words  Required 418-410 

Intent  not  Material,  When 41!) 

What  does  not  Amount  to 420 

Mere  Expressions  of  Opinions  not 420 

Praise  or  Boasting  not 421 

Must  form  part  of  the  Contract 421 

Warranty  after  Sale 422 


XXXll  INDEX. 

Sale  for  Future  Delivery  (Continued). 

Sale  by  Sample,  Implied 422 

Keasoiiable  Opportunity  to  Inspect,  etc 423 

Sale  when  not  by  Sami>le 423 

Warranted  Equal  to  Sample 423 

Sale  for  Future  Delivery. 

Implied,  of  Kind  and  Quality 42-t 

Implied,  of  Manufacturer 425-42G 

Of  Machine  on  Trial 426 

To  be  Returned  within  Reasonable  Time 42G 

When  no  Implied  Warranty 427 

When  Purchaser  has  Opportunity  to  Inspect 427 

Fraud  and  Breach  of  Warranty 427 

Of  the  Soundness  of  a  Horse 428 

Defect  must  Exist  at  time  of 428 

Visible  Defects  not  Warranted  Against 429 

Artilice  to  Prevent  Examination 430 

What  Plaintiff  Must  Prove 430 

Measure  of  Damages 431 

Of  Skill  and  Care  Implied,  When 210-212 

Of  Skill  and  Care  of  Workman  Implied 450-451 

Water  Courses. 

City  Liable  for  Changing 253 

Wills. 

Who  May  Make 432 

Relatives  have  no  Legal  Claim,  etc 432 

Essentials  of  a  Will 433 

Jury  Should  Take  the  Law  from  the  Court 433 

Witnessing— What  Sufficient ; 433 

Insanity  or  Unsound  Mind. 

Issue  to  be  Tried 434 

Burden  of  Proof 434 

What  is  Sound  and  Disposing  Mind 435-43(3 

Test  of  Testamentary  Capacity 430 

What  is  Testamentary  Capacity 43G 

Partial  Insanity  Jlonomania 437 

Delusion  Regarding  Wile  or  Child's  Property 438 

Sanity  is  Presumed 43!) 

Insanity—  How  Determined 43!) 

Settled  Insanity  Presumed  to  Continue 439 

Drunkenness  as  Afi-'Ctiiig  Testamentary  Capacity 440 

Partial  Failure  of  Memory 410 

Old  Age  Does  Not  Incapacitate 411 

Previously  Expressed  Purposes 441 

Will  May  be  Referred  to ^^41 

Expert  Testimony— How  Judged  442 

Testimony  of  Subscribiiig  Witness— How  Judged 442 

Undue  Influence. 

Issue  to  bo  Tried '^  ^'^ 

No  General  Rule— What  Must  Appear 113-444 


INDEX.  XXXlll 

Undue  Influence  {Continued). 

Must  Aflfect  the  Will 444 

Must  Destroy  Free  Agency 444 

Legitimate  Influence,  What 445 

Legitimate  Advice  or  Persuasion 446 

Cannot  Question  Testator's  Motives 446 

Motives  May  be  Inquired  into,  When 446 

Presumption  from  Unlawful  Cohabitation 447 

Effect  of  Groundless  Fears 447 

Provisions  of  Will  may  be  Considered 448 

Witness. 

One,  Sufficient,  When 481,  543,  545 

Credibility  of.  Question  of  Fact  for  the  Jury 29 

Circumstances  Affecting  the  Credit  of 30 

One  Credible  Witness  may  be  Entitled  to  More  Credit  than  a 

Number  of  Others 31 

Jury  Have  no  Right  to  Disregard  the  Testimony  of.  Without 

Cause 31 

When  the  Jury  may  Disregard  the  Testimony  of 32 

The  Jury  Should  Reconcile  the  Testimony  of,  if  Possible 32 

Impeachment  of .  . .    33 

Wilfully  Swearing  Falsely 33 

Bad  Reputation  for  Truth 34 

Different  Statements  Out  of  Court 34 

Contradictory  Statements  Out  of  Court 35 

Jury  Need  not  Disregard  Testimony  of  Impeached  Witness 35 

Contradictory  Statements  Out  of  Court  Explained 36 

Testimony  of,  as  to  Dates 38 

A  Party  as. 

Testimony  of,  to  be  Weighed  by  Jury 39 

Verbal  Admissions  of.  How  Weighed 40 

Admissions  of,  all  to  be  Considered  Together 41 

Admissions  of.  Jury  may  Believe  Part  and  Reject  Part 41 

Admissions  of,  How  to  be  Weighed 42 

For  a  Corporation,  How  Regarded 40 

Attorney  as 45 

Experts. 

Medical  Testimony 442 

Woodland — See  Ejectment. 

WoEDS  OF  Provocation — See  Homicide. 

Work  and  Labor. 

Implied  Contract 449 

Promise  to  Pay  Implied,  When 449 

Where  no  Price  is  Fixed 450 

Professional  Services,  Price  Implied 450 

Warranty  of  Skill  and  Care  Implied 450-451 

Ordinary  Skill  Defined 452 

Effect  of  Accepting  Work 452 

Usual  Wages  Implied,  When 453 

Not  Bound  by  Acceptance,  When 453 


XXX  iv  INDEX. 

Entire  Contract. 

Fulfillment  Prevented  by  Defendant 453 

Substantial  Performance 454 

Leaving  Employ  Without  Good  Cause 45  "> 

Payment  a  Condition  Precedent    455 

Burden  of  Proof 45(1 

Pretext  for  Leaving 45(; 

Must  be  Substantial  Cause  for  Leaving  45(> 

Right  to  Recover  in  Different  States — Note 457 

Rule  of  Damages 457-458 

Servant  must  Demean  Himself  Respectfully 459 

Leaving  on  Account  of  Sickness  459 

Discharged  or  Compelled  to  Leave  Without  Good  Cause 459-460 

Measure  of  Damages 460 

Workman  must  Avoid  Unnecessary  Damage 460 

Services  by  Member  of  Family 461 

Stranger  Member  of  Family 462 

Services  of  Child 462 

When  Promise  to  Pay  Child  may  be  Inferred 463 

Emancipation  of  Minor  Child 463 

Minor  can  Disaffirm  Contract,  When 463 

No  Implied  Promise  to  Pay  for  Gratuitous  Labor 463-464 

Agreed  Price  must  Govern 464 

Contract  Presumed  to  Continue,  When 164 

Evidence  of  Reasonable  Worth 465 

Burden  of  Proving  Payment 465 

Not  Bound  by  Offer  to  Compromise 466 

Eff.'ct  of  Pleading  Set-Off  466 

Written  Contract  Varied  by  Parol 466 


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